GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
OF OILQUICK DEUTSCHLAND KG
1. SCOPE OF APPLICATION
1.1 These General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTC”) shall apply to all business relations of OilQuick Deutschland KG (hereinafter referred to as ” OilQuick”) with the Customer. The GTC shall only apply if the Customer is an entrepreneur (section 14 of the German Civil Code – BGB), a legal entity under public law or a special fund under public law section 310 subsection 1 sentence 1 BGB).
1.2 The GTC apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter referred to as “goods”) (sections 433, 650 BGB).
1.3 These GTC apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Customer shall not apply, even if OilQuick does not specifically object to their application in individual cases.
1.4 Individual agreements made with the Customer in individual cases shall in any case take precedence over these GTC. For the content of such agreements to be binding, a contract at least in text form (in particular by e-mail) or a letter of confirmation at least in text form on the part of OilQuick shall be required.
1.5 Unless otherwise agreed, the GTC shall apply in the version which is valid at the time of the Customer’s order or, in any case, in the version last communicated to the Customer in text form as a framework agreement for similar future contracts, without OilQuick having to point them out again in each case.
2. CONCLUSION OF THE CONTRACT, COPYRIGHT, ASSIGNMENT OF RIGHTS OF THE CUSTOMER
2.1 All offers made by OilQuick are always subject to change and non-binding unless they are expressly designated as binding.
2.2 The order of the goods by the Customer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, OilQuick shall be entitled to accept this offer of contract within five working days of its receipt. Acceptance may be declared either in writing or in text form (hereinafter “order confirmation”) or be given implicitly by delivery of the goods to the Customer.
2.3 Verbal agreements deviating from the order confirmation shall only be valid if they were made with a managing director, authorised signatory or general agent of OilQuick or are confirmed in writing or in text form by OilQuick.
2.4 OilQuick reserves all property rights and copyrights to its own illustrations, drawings, calculations and other documents which OilQuick makes available to the Customer – including those in digital form. In particular, no right of use is granted to the Customer. Before passing them on to third parties, the Customer requires the express written consent of OilQuick.
2.5. The assignment of rights of the Customer arising from the contract requires the written consent of OilQuick.
3. PLACE OF PERFORMANCE, DELIVERY, TRANSFER OF RISK, ACCEPTANCE
3.1 OilQuick shall generally hand over the goods at its place of business, which is also the place of performance for delivery and any subsequent performance. At the Customer’s request and expense, the goods shall be shipped to another destination (sales shipment). Unless otherwise agreed in writing or in text form, OilQuick shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.
3.2 The risk of accidental loss and accidental deterioration of the goods shall be transferred to the Customer upon handover at the latest. When goods are shipped, the risk of accidental loss and accidental deterioration of the goods shall be transferred to the Customer upon their delivery to the carrier. This shall also apply if the delivery to the carrier is not made by OilQuick (direct shipment by OilQuick’s suppliers) or if OilQuick uses its own employees for shipping the goods.
3.3 Insofar as an acceptance test is agreed, this shall be authoritative for the time of transfer of risk. In all other respects too, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to any agreed acceptance test. Handover or acceptance test shall be deemed to have occurred if the Customer is in default of acceptance.
3.4 Transport insurance shall only be taken out on the express instruction of the Customer, in the Customer’s name and at the Customer’s expense. Dealing with any insurance claims is the responsibility of the Customer.
3.5 Delivery dates and deadlines shall be agreed in writing or in text form and may be made binding or non-binding. Delivery periods shall commence upon conclusion of the contract. Delivery dates and deadlines shall be deemed to have been met upon notification of readiness for delivery. Compliance with the delivery time is contingent upon the timely and proper fulfilment of any required or agreed cooperation obligations on the part of the Customer. Otherwise, the delivery time shall be postponed to a reasonable extent.
3.6 The Customer can demand that OilQuick deliver (reminder) at the earliest two weeks after the expiry of the agreed non-binding delivery date/period. If a binding delivery date or a binding delivery period is exceeded, OilQuick shall already be deemed to be in default upon exceeding the delivery date or period.
3.7 Force majeure (unforeseen circumstances and occurrences for which OilQuick is not responsible and which could not have been avoided with the due diligence of a prudent businessman, e.g. labour disputes, war, fire, transport hindrances, shortage of raw materials, import and export restrictions, official action, pandemics, epidemics) or operational disruptions, both at OilQuick and at its suppliers, which temporarily prevent OilQuick from delivering the goods when due through no fault of its own, shall extend delivery dates and periods by the duration of the hindrance. If such disruptions lead to a delay of more than four months, either contracting party may withdraw from the contract.
3.8 Compliance with the delivery periods shall depend on OilQuick itself being supplied correctly and properly, provided that OilQuick is not responsible for any failure to deliver and that OilQuick has, with due diligence, entered into a specific cover transaction with suppliers. OilQuick shall inform the Customer of any impending delays as soon as possible.
3.9 Partial deliveries are permissible if the partial delivery can be used by the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur any significant additional work or costs as a result.
4.1 Unless otherwise agreed in writing or in text form, prices are net (Euro) “ex works” (EXW Incoterms ® 2020) without packaging and shipping plus the statutory value added tax at the statutory rate on the date of invoicing.
4.2 In the case of a sales shipment (clause 3.1), the Customer shall bear the transport costs ex works and the costs of any transport insurance desired by the Customer. Any customs duties, fees, taxes and other public charges shall also be borne by the Customer.
4.3 If more than four months have elapsed between the conclusion of the contract and delivery without OilQuick being responsible for a delay in delivery, and if OilQuick’s material costs have increased since the conclusion of the contract (in particular due to changes in the prices of any upstream suppliers, customs duties, taxes and other levies) and/or wage costs owed under collective agreements have increased, the agreed price shall change accordingly. OilQuick shall announce the price change in text form. Any increases in a type of cost may only be used as a basis by OilQuick for a price increase to the extent that they are not offset by any decreasing costs in terms of other types of cost. This shall apply mutatis mutandis to reductions. OilQuick shall select the points in time of changes in price in such a way that cost reductions are not taken into account according to criteria which are less favourable for the Customer than cost increases, i.e. cost reductions shall have at least the same effect on the price as cost increases. If the increase amounts to more than 5% of the agreed net price, both contracting parties shall be entitled to withdraw from that part of the contract which is affected.
4.4 If OilQuick carries out any subsequent changes desired by the Customer, OilQuick may invoice the Customer for the extra costs thus incurred.
5. PAYMENT, SECURITY
5.1 Unless otherwise agreed in writing or in text form, the purchase price shall be due for payment without deduction within 30 days of invoicing and delivery or acceptance of the goods. If payment deadlines are exceeded, the Customer shall be in default even without a reminder.
5.2 In the case of orders placed by customers who have their place of residence or registered office abroad, or in the case of substantiated indications of a risk of non-payment, OilQuick shall be entitled at any time, also within an ongoing business relationship, to effect a delivery in whole or in part only against advance payment or the provision of security. OilQuick shall declare any such reservation at the latest when confirming the order. The delivery of the goods shall only take place after prior payment in full. If the Customer is not prepared to pay in advance or to provide security despite a justified request, OilQuick shall be entitled to withdraw from the contract.
5.3 If, after conclusion of the contract, it becomes apparent that the claim to the purchase price is jeopardised by the Customer’s inability to pay (e.g. by the opening of insolvency proceedings), OilQuick shall be entitled, in accordance with the statutory provisions, to refuse performance and – where applicable after setting a time limit – to rescind the contract (Section 321 of the German Civil Code). The statutory provisions as to whether a time limit needs to be set or not shall remain unaffected.
6. OFFSETTING, RIGHT OF RETENTION
The Customer may only offset claims of OilQuick against undisputed counterclaims or counterclaims which have become res judicata. The Customer may only assert a right of retention if it is based on claims arising from the same contractual relationship and the claim is undisputed or has been finally determined by a court of law.
7. WARRANTY AGAINST DEFECTS, LIMITATION PERIOD
7.1. The specifications mentioned in the contract or attached documents, such as illustrations, drawings, specifications of weight, dimensions and performance, are only approximate unless they are expressly designated as binding. They are not guaranteed characteristics, but serve as a standard for determining whether the goods are free of defects. OilQuick reserves the right to make changes in design or shape, deviations in colour and changes in the scope of delivery, provided that the goods are not substantially changed and the changes are acceptable to the Customer. Insofar as OilQuick uses signs or numbers to designate the order or the goods, no rights can be derived from these alone.
7.2. Any claims for defects on the part of the Customer shall be subject to the condition that the Customer has complied with his statutory duties of inspection and complaint notification (Sections 377, 381 of the German Commercial Code [HGB]). If a defect becomes apparent during the inspection or later, OilQuick must be notified thereof without delay in writing or in text form. The notification shall be deemed to have been made without delay if it is made within seven working days, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this duty of inspection and complaint notification, the Customer must notify OilQuick of obvious defects in writing or in text form within seven working days of delivery, whereby the timely dispatch of the notification shall also suffice here to meet the deadline.
7.3. In the event of material defects of the delivered goods, OilQuick shall be obliged and entitled to choose between rectification (repair) or replacement delivery within a reasonable period of time.
7.4. If subsequent performance has failed or if a reasonable period to be set by the Customer in writing for subsequent performance has expired fruitlessly or is not necessary according to the statutory provisions, the Customer may withdraw from the contract or reduce the purchase price. In the case of an insignificant defect, however, no right of withdrawal exists.
7.5. Claims of the Customer for damages or reimbursement of futile expenses can only be made in accordance with clause 8 of these GTC and are otherwise ruled out.
7.6 If the Customer provides materials or substances for the execution of the order, these must be free of defects. OilQuick shall have no duties of clarification, inspection or consultation vis-à-vis the Customer for the materials or substances provided by the Customer and shall not be obliged to inspect them. If defects in the goods are attributable only to materials or substances provided by the Customer, warranty claims for defects shall be ruled out.
7.7 Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims of the Customer arising from material defects and defects of title shall be one year from delivery. Insofar as an acceptance test has been agreed upon, the limitation period shall commence upon acceptance of the goods. The above limitation periods shall not apply to limitation periods under the Product Liability Act. Sections 438 (1) no. 1, no. 2 and 438 (3) BGB shall also remain unaffected. With regard to any claims for damages on the part of the Customer pursuant to clause 8 of these GTC, only the statutory limitation periods shall apply.
8.1 OilQuick shall be liable without limitation under the Product Liability Act, in cases of express assumption of a guarantee or a procurement risk, in cases of intentional or grossly negligent breach of duty and in cases of defects which OilQuick has fraudulently concealed. Likewise, OilQuick shall be liable without limitation in the event of intentional or negligent injury to life, body or health. With regard to property damage and financial losses caused by slight negligence, OilQuick shall only be liable in the event of a breach of obligations which are essential for the proper performance of the contract and upon whose fulfilment the Customer may rely in particular (“essential contractual obligations”), limited however to the loss which is typical for the contract and which was foreseeable at the time of the conclusion of the contract. Any claims for damages asserted by the Customer which are based on contractual penalties of contractual partners of the Customer are under no circumstances foreseeable for OilQuick or typical for the contract in the aforementioned sense.
8.2 In the event of a negligent breach of an obligation, OilQuick shall however not be liable for indirect and/or consequential losses, particularly loss of profit, wasted expenditure, business interruption or loss of production.
9. RETENTION OF TITLE
9.1 OilQuick shall retain title to all contractual deliveries and services until all the accounts receivable arising from the business relationship with the Customer have been settled in full.
9.2 In the case of a current account, the retained title shall serve as security for the balance demands accruing to OilQuick.
9.3 The Customer shall be permitted to sell the products which are subject to retention of title (“retained products”) in the ordinary course of business. The Customer hereby assigns the claim arising from the onward sale to OilQuick; OilQuick hereby accepts this assignment.
9.4 The Customer is not entitled to make dispositions of any kind which jeopardise OilQuick’s property. In the event of seizure, confiscation, damage and/or loss, the Customer is obliged to inform OilQuick immediately. Any breach of this obligation shall entitle OilQuick to withdraw from the contract. The Customer shall bear all costs which need to be incurred, in particular in the context of a third-party action to have an attachment lifted and, if necessary, to recover the delivery items, insofar as they cannot be collected from third parties.
9.5 The Customer is obliged to treat the retained goods with care, in particular to insure them adequately at replacement value against fire, water and theft losses at his own expense. Insofar as maintenance and inspection work is required, the Customer shall carry it out in good time at his own expense.
9.6 If the Customer combines the retained goods with other goods, OilQuick shall be entitled to co-ownership of the new property in the ratio of the invoice value of the retained goods to the invoice value of the other goods plus the processing value. If OilQuick’s title lapses due to combination, mixing or processing, the Customer shall transfer to OilQuick at the time of such combination, mixing or processing his title to the new property to the extent of the invoice value of the retained goods and shall keep it in custody for OilQuick free of charge. The property rights accruing to OilQuick as a result shall be deemed to be retained goods within the meaning of clause 9.3.
9.7 The Customer hereby assigns to OilQuick any receivables in respect of the retained goods arising from their onward sale or further processing or any other legal reason (e.g. an insurance claim or a tortious act) such as the purchase price, wages for work or other receivables (including the acknowledged balance from a current account agreement) in the amount of the invoice value of the reserved goods; OilQuick hereby accepts the assignment. The assignment of receivables as per clause 9.6 sentence 1 serves to secure all claims – including future claims – arising from the business relationship with the Customer.
9.8 The Customer shall be entitled to collect receivables from the onward sale on behalf of OilQuick in his own name on a revocable basis. This collection authorisation may be revoked in particular if the Customer fails to fulfil his payment obligations in an orderly manner. In such a case, at OilQuick’s request the Customer shall provide the information regarding the assigned receivables which is necessary for collection, make the relevant documents available and notify the debtor of the assignment in writing.
9.9 If the realisable value of the securities granted to OilQuick according to the aforementioned provisions exceeds OilQuick’s claims against the Customer not only temporarily by more than 10%, OilQuick shall release securities to that extent at its own discretion upon the Customer’s request.
9.10 The Customer’s rights to resell and use the retained goods as well as the authorisation to collect assigned receivables shall expire if the Customer ceases to make payments or files for or initiates insolvency proceedings. The statutory rights of an insolvency administrator – including provisional ones – shall remain unaffected.
9.11 In the case of deliveries to other jurisdictions in which the aforementioned retention of title provision does not have the same security effect as in Germany, the Customer shall do everything in his power to provide OilQuick with corresponding security rights without delay. The Customer shall cooperate on all measures, e.g. registration, publication, etc., which are necessary for and conducive to the effectiveness and enforceability of such security rights.
10. CONFIDENTIALITY, DATA PROTECTION
10.1 The Customer shall keep secret, not disclose or reveal OilQuick’s business secrets as defined in Section 2 No. 1 of the German Business Secrets Act (GeschGehG) as well as other confidential information, in particular economically, legally, fiscally and technically sensitive data (collectively “Confidential Information”) with which he was entrusted or of which he gained knowledge – irrespective of whether it was expressly marked as confidential or not. Confidential Information shall not include information which was known or generally available to the public prior to its disclosure or forwarding by the Customer or which becomes so at a later date without breach of a confidentiality obligation; which was already demonstrably known to the Customer prior to disclosure and without breach of a confidentiality obligation; which was obtained by the Customer himself without use of or reference to the Confidential Information, or which is forwarded or made available to the Customer by an authorised third party without breach of a confidentiality obligation. This obligation shall also apply for a period of five (5) years after termination of the relevant contract. This obligation also includes the terms of the relevant contract itself.
10.2 The Customer is not entitled to use, exploit or appropriate the Confidential Information for any other purposes than those contractually agreed between the parties, neither himself nor for or via third parties.
10.3 Particularly in the case of products and objects, the Customer is not entitled to obtain Confidential Information by way of so-called “reverse engineering” by observing, examining, deconstructing or testing them.
10.4 Insofar as documents containing Confidential Information were provided in electronic form, such data shall be deleted upon termination of this Agreement at the latest or – if this is not technically possible – permanently blocked.
10.5 The Customer may only disclose Confidential Information in-house to the necessary extent and to the necessary group of persons (“need-to-know”). The Customer may in particular only disclose confidential information to his employees who are bound to secrecy or to his advisors who are subject to professional secrecy, insofar as they are involved in the contractual relationship with OilQuick and have a reasonable need for the information. Employees must be made aware of this agreement in advance. The Customer shall take all necessary measures to ensure that all persons to whom Confidential Information is disclosed or made available treat it in the same manner as the Customer is obligated to do.
10.6 The Customer shall also secure the Confidential Information against unauthorised access by third parties by taking appropriate privacy measures and shall comply with the statutory and contractual provisions on data protection when processing the Confidential Information. This also includes state-of-the-art technical safeguards (Art. 32 of the GDPR) and the obligation of employees to maintain confidentiality and observe data protection (Art. 28 (3) (b) of the GDPR).
10.7 If the Customer intentionally or negligently breaches the aforementioned duties of confidentiality, he shall pay an appropriate contractual penalty, the amount of which shall be determined by OilQuick at its reasonable discretion and, in the event of a dispute, be reviewed by the competent court. The amount of the specifically imposed contractual penalty depends in particular on the degree of confidentiality of the trade secret or other confidential information concerned, the degree of fault, the amount of information disclosed and the number of unauthorised persons to whom the information was disclosed in breach of obligation.
11. APPLICABLE LAW, PLACE OF JURISDICTION, SEVERABILITY CLAUSE
11.1 The exclusive place of jurisdiction for all disputes arising directly or indirectly from and in connection with the contractual relationship shall be the court at the place of OilQuick’s registered office if the Customer is a merchant, a legal entity under public law or a special fund under public law. This shall also apply whether or not the Customer is a merchant if the Customer has moved his place of residence or habitual abode abroad, if his place of residence or habitual abode is not known at the time the action is brought or if claims are asserted by way of dunning proceedings. OilQuick is also always entitled to bring an action at the Customer’s general place of jurisdiction.
11.2 The law of the Federal Republic of Germany shall apply, excluding any conflict of laws rules of private international law as well as the UN sales law as amended from time to time (United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 – CISG).
11.3 If any provision of these GTC is or becomes wholly or partly invalid, unenforceable or ineffective, the validity of the remaining provisions of these GTC shall not thereby be affected. In such a case, a provision which comes as close as possible to the meaning and purpose of the provision in question shall apply instead of the invalid, unenforceable or ineffective provision. The same shall apply if these GTC contain an unintended loophole.
(As of September 2020)