Terms and Conditions
General Terms and Conditions of Sale, Delivery and Payment for Deliveries of Solid Fuels to Merchants pursuant to sec. 14 of Germany's Civil Code (BGB) and to Public Authorities
1. Offer and Subject Matter
All offers are subject to change without notice, unless a firm period of validity is stated. Any commitments on our part are only binding if and when they have been confirmed by us in writing in accordance with sec. 127 of Germany's Civil Code (BGB) in a qualified digital version or text from. Failing other arrangements in writing, sales shall be subject to our terms and conditions. Divergent terms and conditions employed by Buyer shall apply only if confirmed by us in writing. Acceptance of delivery shall imply acknowledgement that our terms and conditions are binding Samples are deemed to be non-binding inspection specimens. Failing other explicit arrangements, analytical data are to be regarded as mean values only.
Sample-taking and analyses are in accordance with DIN and ISO.
Failing other arrangements, the prices charged are those applying on the date of delivery and costs set forth in price lists plus the statutory rate of value-added tax.
We may directly pass on to the Buyer any increase in, or introduction of, taxes, levies, fees or other public stipulations (e.g. energy tax, CO2 Allocation Act, VAT, toll) occurring after commencement of the contract and in connection with the production, sales or transport of the goods, provided that they are not yet contained in the agreed prices.
Failing other arrangements, we shall not be obligated to deliver goods of a certain provenance or a certain brand or from a specific delivery works or store of departure. The delivery weight or quantity shall be established using
- a) the weight certificates or delivery notes of the delivery works or store of departure, in the case of deliveries by road or rail.
- b) the loading bills of the dispatch stations, in the case of deliveries by water.
Requests for the provision of railway wagons having a specific payload or wagons of a specific type shall be taken into consideration wherever possible. We can make full use of the payload of wagons provided by the railways. Any dead freight shall be borne by Buyer.
Our commitments are subject to our being supplied correctly and on time. This proviso shall not apply if we are answerable for the obstacle to performance.
4. Delivery time
Unless explicitly agreed in writing, delivery dates or delivery terms requested by Buyer are non-binding, but shall be observed wherever possible. Failing other arrangements, we shall deliver ex works (Incoterms 2010).
Any non-adherence to delivery terms or dates agreed with legally binding effect shall entitle Buyer to rescind the contract subject to the provisions of statute, wherever we are answerable for such non-adherence. In the event that we are not answerable for such non-adherence, we shall be entitled to make subsequent deliveries or to rescind the contract.
5. Force Majeure
Any disruptions to operations, plant closures, cut-backs in operations, directives by public authorities with or without legal basis, incl any subsequent cessation or non-issuance of import and export licenses in the country of origin or the introduction of new, or more than a merely slight increase in existing, taxes and customs duties in respect of the merchandise or the export of same, shortage of wagons, obstacles to traffic, shortage of workers, walkouts, lockouts and strikes, regardless of whether they are caused by breach of contract or based on previous notice of termination, as well as any elemental disruptions, like tempest, flooding and fire, and any events and circumstances whose avoidance is beyond our control or which cannot be averted with reasonable technical and financial outlays, including their consequences, which impair or delay our performance or those of our suppliers, or dispatch, shall entitle us to either restrict, postpone or discontinue deliveries, or to rescind the contract either wholly or in part. Any such event shall not give rise to any claim for compensation unless the claim is based on wilful action or on gross negligence.
Failing other arrangements governing maturity, invoice amounts shall be due and payable at once, without deduction or right of retention, upon receipt of the invoice, but not later than 14 days after the date of the invoice. Any payments received shall be deemed to have been made on the day on which we can dispose of the amount. We do not accept bills of exchange. Where cheques are submitted, payments shall only be deemed to have been made upon encashment, due payment provided. Any collection charges for cheques shall be borne by Buyer. We assume no liability for punctual submission, protesting, notifications and rejections of cheques. Buyer shall have a right of setoff only in the case of undisputed or legally effective claims.
In the event of Buyer's default, we shall be entitled to demand immediate payment of any other receivables from Buyer notwithstanding any other rights due to us.
Buyer shall furnish security at an adequate level and in a form we deem suitable. Pending payment in full for all deliveries, we shall retain title to the delivered merchandise. Pending any resale or consumption in the ordinary course of business, Buyer shall store the merchandise under reserve separately and mark it as such at our demand. In the event that Buyer is in default, we shall be entitled to demand surrender of the delivered merchandise under reserve even without rescinding the contract; sec. 449 II BGB shall not apply. Failing other explicit arrangements, our demand for surrender shall not imply rescission of the Agreement.
In the event that any merchandise is resold prior to payment of the full purchase price, the merchandise shall be replaced by the resulting claim due to Buyer, which is assigned to us herewith. We shall be notified upon contracting at the latest of any assignment already performed of claims to payment based on the resale of the fuels supplied by us. Any later assignments shall be inadmissible.
Buyer may neither pledge nor assign merchandise under reserve. Buyer shall notify us without delay should any third party seize either the merchandise under reserve or the purchase price replacing the merchandise.
In the event of any attachment, Buyer shall forward us the minutes of the attachment and an affidavit stating that the attached items are our property. General Terms and Conditions of Sale, Delivery and Payment for Deliveries of Solid Fuels to Merchants pursuant to sec. 14 of Germany's Civil Code (BGB) and to Public Authorities In the event that the merchandise supplied by us is commingled, mixed or added to other merchandise, we shall be entitled to co-ownership of the resulting merchandise (sec. 948 BGB). Our co-ownership interest shall depend on the ratio of the purchase prices of the previously separate merchandise. In the event that the new merchandise is waste or otherwise not commercially exploitable, we shall be entitled to abandon our lien by declaration vis-à-vis Buyer or any coowner. In the event that the merchandise supplied by us is processed by Buyer or Buyer's contractual partners (sec. 950 BGB) such processing shall be deemed to have been performed on our behalf, i.e. we shall acquire title to such processed merchandise. The property due to us under this paragraph shall be stored by Buyer or Buyer's contractual partners free of charge for us. In the event of any resale, para. 2 of this clause (assignment of claim to purchase price) shall apply mutatis mutandis.
For the purposes of examination and justified repossession of our security, Buyer shall grant us access thereto.
The defence of uncertainty (sec. 321 BGB) is due to us, inter alia, if a creditsales insurer reduces the credit line for transactions with the Buyer by at least 50%.
8. Properties of the Merchandise, Complaints, Warranty
Any fluctuations in the properties or appearance of the delivered merchandise that do not exceed the usual level or any limit stipulated by statute shall not constitute grounds for complaint. Failing other arrangements in writing, no specific properties are agreed for natural products, e.g. raw lignite. Where natural products are washed, graded, dried, compressed, ground or otherwise treated by us or by our own suppliers, a warranty shall only exist to cover the orderliness of such treatment.
Failing other explicit arrangements by way of exception, we shall assume no warranty for properties and durability (sec. 443 BGB). No liability for defects shall exist if Buyer or other owners commingle the merchandise supplied by us with other products or modify such merchandise, unless such comingling or modification was not the cause for the defect.
In the event that the merchandise is collected from the delivery works/store of departure, any complaints in respect of apparent defects must be made on the spot and at once and be confirmed in writing or by fax message. Otherwise, any complaint in respect of apparent defects must be made within 2 days of arrival and then confirmed in writing or by fax. In the event of hidden defects, any complaints must be made in writing or by fax within 2 days of detection. In the event of a failure to complain or to do so properly, the merchandise shall be deemed to be approved. Buyer shall leave untouched any merchandise complained of to permit examination by us. Specimens for forwarding to testing authorities shall only be recognized as authoritative if such samples are taken in the presence of an agent appointed by us. In the event that Buyer has already supplied consumers with faulty fuel supplied by us, Buyer shall inform us without delay about the settlement of any justified claims asserted by final consumers.
In the case of justified complaints, our warranty is initially confined to replacement in kind. Where agreed delivery of replacements fails on grounds for which we are answerable or is unreasonably delayed by us, Buyer shall be entitled to demand a reduction in the purchase price or rescission of the contract. Rescission based on minor defects is excluded. This shall not affect Buyer's right of recourse under sec. 478 BGB.
9. Statutory limitation
Any claims based on an infringement of contractual duties due to minor negligence or on an infringement for which we are not answerable are barred within one year of such infringement; in the case of claims based on defects, this period shall commence upon delivery. In the event of gross negligence, statutory provisions shall apply.
10. Liability (Compensation)
We only assume liability to pay compensation, irrespective of the legal grounds and regardless of whether a direct or indirect loss is involved, to the extent that the loss is caused by us or our agents due to either wilful action or to gross negligence, or to the extent that culpable injury to life, limb or health exists, or if we fail with malicious intent to disclose any defects. This shall not affect mandatory liability, e.g. under Germany's Product Liability Act (ProdHaftG) or any infringement of material contractual duties. Liability for unforeseeable or atypical loss is excluded, unless the loss is covered by an insurance in exceptional cases.
11. Taxes and Duties
Buyer shall be liable for compliance with any tax and customs regulations he is required to observe. Buyer shall indemnify us for any loss resulting from violations of statutory regulations.
12. Data Protection
Buyer agrees that we or any offices commissioned by us may digitally store or process important data under the business relationship with Buyer.
13. Place of Performance, Applicable Law and Jurisdiction
Place of performance shall be the location of our delivery works or the store of departure concerned. The Agreement shall be subject to German law, but not to the provisions of private international law and the UN Convention on Contracts for the International Sale of Goods. In the event of any disputes, the courts at Cologne shall have jurisdiction for both parties hereto.
The Agreement and these General Business Conditions shall remain binding even if specific provisions are ineffective.