General terms and conditions of business and terms of delivery of FaktorPlus GreenTechnology GmbH, Celle
§ 1 Validity of the general terms and conditions of business and terms of delivery
1. For all present and future activities and deliveries, equivalents, payments as well as all other mutual demands from and in connection with contracts between FaktorPlus GreenTechnology GmbH and its partners (subsequently called client) exclusively the following general terms and conditions of business and terms of delivery are valid.
2. „Client" for the purpose of these terms of business is a natural or juridical person or partnership having legal capacity who when ordering goods and/or services exclusively acts in exercise of his commercial or self-employed occupational activity.
3. Possible general conditions of business, payment or delivery of the client herewith expressly will be objected as far as these differ from the existing conditions or contain amendments. These also will not become subject terms of contract through silence or implicit delivery. An inclusion of such conditions of the partnership will only be considered after these before conclusion of the contract expressly have been accepted in writing by FaktorPlus GreenTechnology GmbH.
4. Individual agreements between the client and FaktorPlus GreenTechnology GmbH which differ from the following general terms and conditions of business and terms of delivery have to be made in writing. This also is valid for a difference of the written form demand.
5. FaktorPlus GreenTechnology GmbH is entitled to change or to amend the following general terms and conditions of business and delivery including possible appendixes at any time. Relevant insofar in each case is the available version from the date of the conclusion of contract.
At an existing current business connection at which due to corresponding contractual agreements a regular exchange of service and return service takes place (continuing obligation) the change/amendment immediately has to be disclosed to the client by transmission of the complete conditions in the changed/amended version. The transmission by telefax or e-mail is sufficient. If the client will not agree to the changed/amended conditions, he has to object in writing against these latest within a period of 2 weeks beginning with the day following the receipt of the changed/amended conditions (telefax or e-mail is sufficient). An objection is unremarkable as far as the change/amendment only serves the implementation of compulsive legal prescription or observation of high judicial decisions of the German and European jurisdiction. In this case FaktorPlus GreenTechnology GmbH already has to inform the client about this when transferring the changed/amended version. In case FaktorPlus GreenTechnology GmbH does not obtain an objection within the aforementioned period, the contract is valid as continued on basis of the changed/amended conditions. When transferring the changed/amended conditions to the client FaktorPlus GreenTechnology GmbH expressly has to inform the client in writing to this legal consequence and the possibility to avoid same by objecting in time.
In case the client has objected effectively against the changes/amendments FaktorPlus GreenTechnology GmbH is entitled to cancel the contractual relationship within a period of 2 weeks – beginning with the day after the receipt of the objection – according to the general legal regulations without important reason without observation of a time limit. If FaktorPlus GreenTechnology GmbH does not use this possibility, the contract is regarded as continued according to the old terms of business.
6. Should individual clauses of these general terms of business and delivery be ineffective, this incidentally leaves the efficiency of contract as well as the conditions unaffected. In this case the parties are obliged to replace the ineffective clause through an arrangement which is close to the economic purpose of the ineffective clause.
§ 2 Order acceptance resp. - rejection
1. The description of the assortment in the relative effective advertising material does not demonstrate a binding contract offer. The corresponding indications regarding price, quantity, delivery possibilities and delivery time are without engagement. Changes expressly remain reserved. Also technical changes in the sense of technical progress remain reserved. Changes in form, colour, weight etc. as well as other variations opposite the illustrations of the product description in brochures and other advertising material remain reserved to a reasonable extent.
2. A contract between the client and FaktorPlus GreenTechnology GmbH only can be concluded if FaktorPlus GreenTechnology GmbH accepts an order (offer) which has been sent by the client to FaktorPlus GreenTechnology GmbH in writing (also per telefax or e-mail) or by telephone/verbally. However, an explicite acceptance e.g. in form of a written confirmation of order to the client is not necessary. The acceptance can also insofar become implied especially through delivery or information that the ordered goods are ready for pick up.
In case FaktorPlus GreenTechnology GmbH should refuse an offer or parts thereof or make the acceptance dependent on additional conditions or if it is foreseeable that the delivery cannot resp. cannot not to the full extent be executed within an appropriate period or within a period specified by the client, FaktorPlus GreenTechnology GmbH this immediately will indicate to the client and if necessary will provide a counteroffer to the client. The client then can decide regarding acceptance of same within the required period of retention informed by FaktorPlus GreenTechnology GmbH.
3. The acceptance of an offer takes place under the specific retention of the right and punctual deliveries of the sub-suppliers of FaktorPlus GreenTechnology GmbH as far as FaktorPlus GreenTechnology GmbH has concluded a congruent hedging transaction and does not have to take care for a wrong delivery or non-delivery. If in case that after conclusion of contract it turns out that the ordered goods are no more available, FaktorPlus GreenTechnology GmbH reserves the right to withdraw the contract. In both cases FaktorPlus GreenTechnology GmbH immediately will inform the client about the non-availibility and immediately compensate possible equivalents already affected by the client.
4. If an order exceeds the commercial quantities, FaktorPlus GreenTechnology GmbH reserves the right to restrict the order to the usual quantity or to make the acceptance dependent on the presentation of a directly enforceable, unlimited and irrevocable bank guarantee amounting to the estimated purchase price.
5. The client is obliged (valid only for vendors operating in the mercantile trade) to present with the (first) order a confirmation which shows that he is able to fulfil the conditions according § 3 Clause 1 Fig. 2a of the Chemical Prohibition Ordinance (Chemikalienverbotsverordnung). If the client hurts this obligation and after acceptance of the order it turns out that the client is not able to fulfil these conditions and thus a delivery to him may not be carried out, he nevertheless is engaged to the supply of the equivalent (payment of purchase price). In case a delivery already took place he is – as far as this is still possible for him – obliged to return (without compensation) as well as if necessary to carry out compensation.
In case the client is an end user together with the order he always has to present the following documents (due to the „Chemikalienverbotsverordnung"):
- if end user is a natural person: copy of identity card. (purchaser must be at least 18 years old) or
- if end user is a company: copy of the certificate of registration resp. extract from the Professional Register and
- certificate showing the necessary experience in handling chemicals as well as
- confirmation that the goods will only be applied in the allowed manner and will not be resold.
Orders to which the a.m. documents are not attached, will not be executed. An explicite information about the refusal of order in this case does not take place divergent to fig. 2.
§ 3 Prices
1. The purchase price for the client basically conforms to the price list of FaktorPlus GreenTechnology GmbH valid at the time of arrival of the order. The unit prices of the price list are quoted as net-prices. As far as payable the client additionally has to pay the accumulating GST (goods and services tax). In case the client has not placed his order under retention of prior notification of the prices, his offer is to be regarded as based on the actual price list.
Price indications contained eventually in older price lists or advertising material which are differing from the actual price list have no validity (see also § 3 fig. 1).
2. As far as the client has mentioned in his order prices differing from the actual price list FaktorPlus GreenTechnology GmbH is entitled to send an order-confirmation to the client indicating the actually valid prices. As far as the client does not disagree immediately, the contract will be concluded on basis of the actual prices.
3. The arrangement under fig. 2 is correspondingly applicable in cases where there will be a change of price imminent after arrival of the order until the time of delivery.
§ 4 Payment conditions
1. Payments – as far as not explicitely stipulated otherwise in writing – have to be effected strictly against invoice.
2. The invoices of FaktorPlus GreenTechnology GmbH are – subject to an ulterior written agreement or differing regulations in the existing terms of business – due and payable in full within 10 days after financial accounting without deduction. The financial accounting basically takes place with date of delivery resp. date of information that the ordered goods are ready for pick-up.
3. For larger orders exceeding the commercial quantities in any case the half of the invoice amount is due and payable immediately at delivery resp. pick-up – irrespective of an eventual bank-guarantee (see § 3 fig. 4).
4. In case the client gets into default of payment, FaktorPlus GreenTechnology GmbH is entitled to the assertion of the individual legal default interest (at the time being 8 % above the base rate for commercial clients and 5 % above the base rate for private clients). The right to claim higher default interest remains reserved. In this case, however, the client is entitled to detect that through the delay no or only minor damage has been caused. Delay occurs with due date of the debt claim without a reminder.
5. All debt claims will immediately become due if the client gets in delay with the implementation of one or more liabilities, culpably does not fulfil other important engagements of the contractual business relation or if FaktorPlus GreenTechnology GmbH will hear about circumstances which are suitable to influence the creditworthiness of the client. To this especially counts the stopping of payments or the (also preliminary) bankruptcy. In these cases FaktorPlus GreenTechnology GmbH is entitled to retain still outstanding deliveries and to make the delivery dependent on an advance payment or presentation of a security.
6. The client can only accumulate opposite requirements of FaktorPlus GreenTechnology GmbH with such counterclaims which legally have been detected, are indisputable or are approved by FaktorPlus GreenTechnology GmbH. The client can claim a retention of goods only on account of counterclaims which are based on the same contractual relationship.
§ 5 Reservation of proprietary rights
1. All goods delivered through FaktorPlus GreenTechnology GmbH remain property of FaktorPlus GreenTechnology GmbH (open account reservation) until complete implementation of all, also future principal- and incidental claims which FaktorPlus GreenTechnology GmbH is being entitled towards the client from the whole business relation as retention merchandise in the amount of the debts claims.
2. The client stores the goods with commercial accuracy and may only resell same in the proper trading as long as he is not in delay. At combination, mixture or commixture with other goods FaktorPlus GreenTechnology GmbH secures joint ownership that the client has to store for FaktorPlus GreenTechnology GmbH.
3. Already now the client as a precaution assigns to FaktorPlus GreenTechnology GmbH all requirements against his purchasers or third parties from the resale with all ancillary rights in full height; FaktorPlus GreenTechnology GmbH already now accepts this assignation. Moreover on demand the client is obliged to issue to FaktorPlus GreenTechnology GmbH a written special assignment for these demands. Is the client reselling the retention goods after combination, mixture or commixture with other goods or together with other goods, then the assignment of claim will be regarded as agreed only in the height of the part which corresponds to the price agreed between FaktorPlus GreenTechnology GmbH and the client plus a safety margin of 10 %.
4. FaktorPlus GreenTechnology GmbH obligates itself to release insofar the securities according to the a.m. assignments (to which they are entitled to) if its value does not exceed the demands by more than 10 %.
5. At distraints or other accesses through third parties to the retention goods which endanger the property of FaktorPlus GreenTechnology GmbH the client will refer to the property of FaktorPlus GreenTechnology GmbH and immediately inform FaktorPlus GreenTechnology GmbH about the access. The client has to bear the costs for possible interventions.
6. The client is obliged to immediately inform FaktorPlus GreenTechnology GmbH about a change of the business location as long as there are existing requirements due to delivered goods.
§ 6 Delivery Conditions
1. Besides the ordered goods with data related to the charge on every label the client obtains with every delivery the complete charge related certificate of analysis as formal product description as well as – in case hazardous materials are at stake – a safety data sheet. The product description will be established according to the best of our knowledge and under greatest possible accuracy as well as under observation of the guide lines ISO 9000 and 9001.
2. For the storage of the products FaktorPlus GreenTechnology GmbH maintains a warehouse with company Ellmers in Bremen/Germany. FaktorPlus GreenTechnology GmbH is anxious to always have available a sufficient stock in the warehouse in order to be able to execute orders in commercial quantities without delay and to avoid the becoming of major delivery times. If the stock should not be sufficient in order to realize incoming orders to the full extent, FaktorPlus GreenTechnology GmbH reserves the right for partial deliveries.
Independent from this, times of delivery are binding only after same have been expressly confirmed in writing after order acceptance.
3. As delivery in the sense of assignment the allocation of the goods for pick up from the stock in Bremen is essential. The accumulated costs for transport and packing up to there are included in the unit prices according to the valid pricelist and will not be disclosed separately. With the allocation the service provided by FaktorPlus GreenTechnology GmbH is fulfilled.
4. The customer basically is obliged to collect the goods within a period of one week after information that the goods are ready to pick up, either by himself of through a forwarding agency authorized by him at his costs. With the handing over of the goods to the client or the forwarding agency (authorized by the customer) the danger of an accidental aggravation exchanges to the client. The same will be effective in case the client will be in default regarding the acceptance. In this case FaktorPlus GreenTechnology GmbH moreover is entitled to charge an adequate rate for storage for every day until pick-up. In case the client has not picked up the goods after 6 weeks despite demand and deadline, FaktorPlus GreenTechnology GmbH is entitled to resign from the contract and to demand compensation for the damage caused.
5. If client wishes FaktorPlus GreenTechnology GmbH also can arrange the transport of goods to him by an adequate forwarder against refund of the accumulating costs.
The danger of an accidental aggravation, loss as well as the price risk with the delivery of the goods to the person destined for the execution of the shipment exchanges to the client. Same is valid for the risk of a late delivery.
6. The client has to take care that he fulfils all legal conditions under which a delivery to him or persons/transport companies (authorized by him to pick up the goods) may be carried out. For orders from overseas this especially contains the observation of the regulations in the home country of the client (e.g. import rules) as well as the observation of rules in possible transit countries.
In case delays or even the impossibility to deliver to the client are based on the non-observance of these conditions, this entirely goes on the account of the client.
7. For an export into countries of the European Union the client has to present to FaktorPlus GreenTechnology GmbH his VAT-No. together with the order. In this case bank charges and insurance will be calculated separately and have to be paid by the client.
8. As far as the order of the client contains the offered service of the fuel system cleaning via a so-called Purge Machine, this service will be carried out by FaktorPlus GreenTechnology GmbH. These operations will be carried out either at the business location of FaktorPlus GreenTechnology GmbH or – as far as contractually concluded – directly at the client. In the latter case the client – as far as not already contractually concluded – has to bear the corresponding additional costs.
§ 7 Return
1. As far as contractually concluded the client has the right to return also goods free from defects within 2 weeks beginning with the date of the handover to the client (self-collector) or the transport company if he returns the goods on his expenses and risk undamaged and complete in its original packing. For the timeliness of the practice of the granted right to return the arrival of goods at FaktorPlus GreenTechnology GmbH is relevant. The client has to provide the evidence of the return and the punctual arrival at FaktorPlus GreenTechnology GmbH.
2. The right to return is excluded for goods which already (also for the intended application) have been opened and/or broached.
3. In cases of a contractually concluded return of goods free of defects FaktorPlus GreenTechnology GmbH has the right for a payment of 15 % of the corresponding invoice value of the returned goods. Incidentally, i.e. at a part return concerning the non- returned goods the purchase price demand remains in full extent. FaktorPlus GreenTechnology GmbH is entitled to deduct the 15 % payment demand from the amount to be repaid to the client due to the returned goods.
4. In cases where the goods show defects or do not correspond to the ordered goods the client basically is not entitled to a return initiated by him. In fact in this case – provided the client has announced the defect or wrong delivery in time – a pick- up of the goods by FaktorPlus GreenTechnology GmbH will take place. However, FaktorPlus GreenTechnology GmbH is entitled to ask for a return of the goods by the client instead of pickup. In this case the return has to be effected unpaid. The costs for the return will be refunded to the client.
§ 8 Guarantee
1. FaktorPlus GreenTechnology GmbH takes the guarantee that the distributed products basically are appropriate for the intended application. The guarantee for the applicability for a defined purpose or a certain success will not be taken over (see also fig. 5).
2. FaktorPlus GreenTechnology GmbH warrants itself or through its sub-suppliers for defects on the goods according its choice in form of amendment or replacement. The replacement also can take place by delivery of equal merchandise.
3. In case of failure of the amendment or replacement the client can ask according to his choice for reduction of the compensation or cancellation of the contract.
4. Immediately after arrival the goods have to be examined regarding free from defects and completeness. Discovered defects immediately – latest within 5 working days after receipt of the goods – have to be indicated to FaktorPlus GreenTechnology GmbH. Punctual dispatch of the notice of defects suffices to comply with the time limit; the burden of proof rests with the client.
In case the client misses the duly examination or notice of defects the delivered goods are considered as accepted, unless the defect was not recognizable during the examination. Defects recognized later also immediately have to be indicated to FaktorPlus GreenTechnology GmbH; otherwise also regarding these defects the goods are being considered as accepted.
The notice of defects has to be carried out in writing by exactly describing the reprehended defect.
5. A defect which would authorize to the assertion of warranty claims is not existent if by application according to regulations the reduction of fuel consumption or the reduction of emissions will turn out lower than stipulated in announcements (brochures, internet, press release or other advertising material) of FaktorPlus GreenTechnology GmbH. These indications only demonstrate examples without engagement. Although these indications are based on the results of numerous tests, the success finally depends on numerous imponderabilities (e.g. driving manner, age of the vehicle etc.) so that a warranty for a certain fuel economization or a certain reduction of emissions cannot be granted.
Therefore a defect which could authorize to the assertion of warranty claims by applying according to regulations only is existent if an economization of fuel and reduction of emissions will not take place at all. The burden of proof lies with the client.
By utilization of the service (fuel system cleaning) a defect which could authorize to the assertion of warranty claims, however, even so is not existent if an economization of fuel and reduction of emissions is not at all detectable. This already results from the character of the service, for which just a certain service – in this case the cleaning – has to be owed, but not a certain success.
6. All warranty claims and claims for damages become time-barred within one year after delivery of the goods.
§ 9 Liability
1. FaktorPlus GreenTechnology GmbH is liable subject to the subsequent rules as well as obligatory legal clauses – also in respect of its auxiliary persons – only for intention and gross negligence. For slight breach of cardinal obligations the liability of FaktorPlus GreenTechnology GmbH restricts by the size to the generally foreseeable damage. For slight negligant caused breach of duty as default or impossibility or for slight negligant caused breach of the duty to protect FaktorPlus GreenTechnology GmbH is not liable.
2. The a.m. non-liabilities and limitations of liability are not valid in cases of irrespective of the party at fault liability, especially according to the Product Liability Act, at indebted bodily injuries and damages of the health or loss of life.
3. FaktorPlus GreenTechnology GmbH is not liable for damages – whatever kind and which amount – which arise by improperly handling, especially an application differing from the intended application of the supplied products (chemicals) or are based on non-observance of the product description resp. technical requirements or insufficient protection with the products (chemicals).
§ 10 Transport Damage
Is the client or a person authorized by him in order to pick up the goods detecting damages on the packing after receipt of the goods, he has to indicate this damage immediately on-site to the auxiliary person of FaktorPlus GreenTechnology GmbH who is assigned for the delivery of the goods and to get a written confirmation for the damage from the auxiliary person. Does the client detect after arrival of the delivery damages on the packing the freight carrier should confirm the damage in writing. Transport damages which only will be detected after unpacking have to be announced to FaktorPlus GreenTechnology GmbH in writing within 5 working days after receipt of the goods. Otherwise the assertion of demands supported to an improper transport are excluded. Complementary § 9 fig. 4 is valid accordingly.
§ 11 Final Clauses
1. Exclusively the substantive law of Germany is valid. The UN convention for contracts via the international goods traffic does not apply.
2. Exclusive jurisdiction for all conflicts from the business relation with the client is the court responsible for the business location of FaktorPlus GreenTechnology GmbH (Celle, Germany).
3. Place of fulfilment for the performance to be provided is Bremen, Germany (location of the warehouse). Place of fulfilment of the equivalent is Celle, Germany (business location of FaktorPlus GreenTechnology GmbH).
4. Should separate clauses of the contract between FaktorPlus GreenTechnology GmbH and the client including these General Terms of Business be or become affectless in total or partly or should same contain a gap, hereby the validity of the other clauses will not be touched. Complementary § 2 fig. 5 is valid.