General Terms and Conditions of Sale and Delivery (AVL) of the
Intermediate Bulk Alliance GmbH
Brägeler Ring 20 | D – 49393 Lohne
Tel. + 49-40-328 926 74-0
Fax + 49-40-8079574-9
Managing directors authorised to represent the company:
Ulrich Schnoor / Sascha Siebel
Register Court: Amtsgericht
Local Court Diepholz
I. Scope of application
1. These Terms and Conditions of Sale shall apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognise terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale if we expressly agree to their validity in writing. If this is not the case, we hereby expressly reject the validity of the customer’s conditions.
2. Individual agreements made with the Purchaser in individual cases (including collateral agreements, supplements and amendments) shall be agreed in writing and shall take precedence over these Terms and Conditions.
II. Offer and conclusion of the contract
1. If an order is to be regarded as an offer pursuant to section 145 of the German Civil Code (BGB), we may accept it within two weeks.
2. Offers on the website, in brochures or other media are, with regard to pricing, properties and condition of the goods (documented, for example, in drawings, illustrations with regard to dimensions, quantities, strengths and weights), fundamentally non-binding and subject to change, to be understood as an invitation to the customer to submit an offer. All individual offers are binding on us for 2 weeks from the date of the offer; this also applies to orders placed by customers.
3. A contract shall only be concluded after we have confirmed the order in writing.
III. Documents provided; industrial property
1. We reserve the property rights and copyrights to all documents – also in electronic form – provided to the customer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the customer our express written consent. These documents may not be made accessible to third parties unless we give our express written consent to do so. Insofar as we do not accept the orderer’s offer within the period stipulated in Section II, these documents must be returned to us without delay.
2. Insofar as trademark, patent or other industrial property rights exist for the products and components, these are to be safeguarded. In the event that a customer specification leads to the infringement of copyrights, trademark rights, patent rights or utility model rights, the customer shall indemnify us against claims of third parties. We shall only be liable insofar as we ourselves are at fault for an infringement of property rights.
IV. Obligation to perform in advance, prices and payment, redemption; partial delivery
1. Unless otherwise agreed in writing, our prices are ex works from our production site in Lohne plus VAT at the applicable rate. The costs of insurance, packaging, freight and all ancillary costs (e.g. customs duties, taxes, export and import costs, other duties & surcharges) shall be borne by the customer.
2. Payment of the purchase price shall be made exclusively to the account stated in the order confirmation. The deduction of a discount is only permissible with a special written agreement.
3. Unless otherwise agreed, the purchase price shall be paid within 14 days (receipt of payment).
4. In the case of payments by the customer, the due debt shall be repaid first, among several due debts the one which offers less security to the creditor, among several equally secure debts the one which is more burdensome to the debtor, among several equally burdensome debts the older debt and in the case of equal age each debt shall be repaid proportionally. The purchaser’s right of determination according to § 366 para. 1 BGB is excluded.
V. Scope of delivery, partial delivery
1. The terms of delivery are basically ‘ex works’ from our production site in Lohne. IBA GmbH reserves the right to deliver cash on delivery.
2. The scope of delivery is determined by our order confirmation and the invoice. The scope of delivery will be determined and documented at the production site upon dispatch.
3. We are generally entitled to make partial deliveries that are reasonable for the customer with partial invoicing, insofar as this has not yet been invoiced.
VI. Rights of Retention, Prohibition of Set-Off by the Purchaser
1. The customer shall only be entitled to exercise a right of retention or set-off insofar as its counterclaim is based on the same contractual relationship and has either been recognised by us or has been legally established by a court.
VII. Rights of retention IBA, security deposit, advance payment, voluntary reversal
1. We shall be entitled, at our own discretion, either to demand advance payment (unless already agreed), to interrupt deliveries or to demand securities if the economic situation of the customer gives cause for concern due to a significant deterioration in his assets.
2. Insofar as we agree to take back goods without being obliged to do so, we shall be entitled to a reimbursement of costs amounting to 15% of the net value of the goods (plus value added tax at the applicable rate), or – in the event of evidence of greater damage – the costs of the loss.
VIII. Reservation of Self-Delivery, Limitation of Damages for Delay; Default of Acceptance
1. Agreed delivery periods and delivery dates shall apply to us subject to correct and proper self-delivery.
2. We are entitled to withdraw from the contract if we ourselves are not supplied correctly or properly, if we are not responsible for the non-delivery, if we have concluded a specific covering transaction with the supplier and have informed the purchaser immediately, at the latest within 14 days of becoming aware of the non-availability, and if we reimburse the purchaser’s counter-performance without delay.
3. Binding delivery periods require express written agreement. These shall commence with the conclusion of the contract or with the date of our order confirmation, in the case of agreed advance payments only on receipt of payment and in any case never before the customer has provided the documents, approvals, releases and other information to be provided by the customer. The handover of the goods to the commissioned forwarding agent shall be deemed to constitute timely compliance with the delivery deadline.
4. In the event of obstacles beyond our control, such as force majeure, war, delays in the delivery of relevant raw materials or components as well as preliminary products, sovereign obstacles (including lockdowns caused by epidemics) or power failures, the (binding) delivery period may be extended adequately. If a supplier is not able to deliver preliminary products, components or raw materials in whole or in part despite existing delivery contracts, we reserve the right to withdraw from the contract in accordance with section 2.
5. In the event of hindrances or delays in delivery for which we are responsible, the customer shall be entitled to withdraw from the contract after setting a reasonable deadline for delivery in compliance with the statutory provisions. In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable within the framework of a compensation for delay amounting to a maximum of 15% of the value of the delivery.
6. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
7. In the event of delays for which the customer is responsible, we shall be entitled – even in the case of partial deliveries – to withdraw from the contract (also partially in relation to services not yet rendered) after setting a deadline of at least 2 weeks and to claim damages instead of delivery. This can be demanded by us at a flat rate of 15% of the performance price (plus value added tax at the applicable rate) or calculated specifically. The customer shall have the right to prove that the actual damage was less than the lump sum.
IX. Transfer of risk in case of shipment; approvals
1. Unless expressly agreed otherwise, we deliver EXW (according to INCO terms) from our production site in Lohne, Germany. The place of handover is also Lohne in this case.
2. The customer is responsible for transport insurance, as we do not assume any liability in this respect as soon as the risk is transferred to the customer.
3. We reserve the right to deliver cash on delivery.
4. If the goods are shipped to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon handover to the transport person. This applies irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.
5. The purchaser shall bear the risk for the granting of the official permits required in connection with the use and, if applicable, export of the ordered products. He is obliged to arrange for any necessary official permits concerning the product (e.g. for its export) himself. We shall cooperate to the extent necessary to ensure that the requirements for the permit are met. The costs for this as well as the risk of refusal of the permit shall be borne by the customer.
X. Retention of title & security rights
1. The delivered goods (goods subject to retention of title) shall remain our property until full payment of all claims arising from this contract. This applies including claims arising in the future, settlements or new contracts. This shall also apply if individual or all of our claims have been included in a current account and the balance has been struck and recognised.
2. As long as ownership has not yet passed to him, the customer undertakes to treat the goods subject to retention of title with care and to insure them adequately at his own expense against damage by fire, water and theft at the replacement value.
3. The customer is not entitled to pledge the reserved goods to third parties or to assign them by way of security. However, the customer is entitled to use the reserved goods and to resell them in the ordinary course of business as long as he is not in arrears with his payment obligations. The purchaser assigns to us by way of security the claims against his business partners arising from the sale. We accept the assignment.
4. We revocably authorise the customer to collect the claims assigned to us for his account in his own name. This shall not affect our right to collect the claims ourselves. However, we shall not collect the claims ourselves and shall not revoke the direct debit authorisation as long as the customer duly fulfils his payment obligations.
5. If the customer acts in breach of contract towards us, in particular if he defaults on his payment obligations, we can demand that he discloses the assigned claims and the respective debtors, informs the respective debtors of the assignment and hands over all documents to us as well as provides all information that we require to assert the claims.
6. The processing or transformation of the goods subject to retention of title by the customer shall always be carried out in our name and on our behalf. If the reserved goods are processed with other items which are not our property, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other processed items at the time of processing. If the reserved goods are inseparably combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other combined or mixed items at the time of combination or mixing. If the combination or mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. We accept this transfer. The customer shall hold the sole ownership or co-ownership of the item thus created in safe custody for us.
7. If the goods subject to retention of title are seized or if they are subject to other interventions by third parties, the customer is obliged, as long as the ownership has not yet passed to him, to inform the third party of the ownership rights to which we are entitled and to notify us immediately in writing so that we can enforce our ownership rights. The customer shall be liable to us for any court or out-of-court costs incurred in this connection unless the third party is in a position to reimburse us for such costs.
8. We undertake, at the request of the customer, to release the securities to which he is entitled to the extent that the realisable value exceeds the value of the outstanding claims against the customer by 5%.
9. In the event of an imminent cessation or insolvency of payments or if facts become known which indicate that the customer’s dutiful compliance with the contract is at risk (especially in the case of negative information indicating a significant deterioration of the customer’s financial situation), IBA GmbH is entitled to take possession of the goods subject to retention of title. The customer hereby irrevocably and unconditionally gives his consent to the surrender. The same applies if execution, bill or cheque protests occur against the customer.
XI. Liability for defects and notice of defects, as well as recourse/manufacturer recourse
1. Claims for defects on the part of the purchaser presuppose that the purchaser has duly fulfilled its obligations to inspect and give notice of defects in accordance with section 377 of the German Commercial Code (HGB).
2. We shall be given the opportunity to inspect the goods and packaging material on site if and insofar as the customer claims a defect.
3. Claims for defects shall become statute-barred 12 months after handover. Insofar as a best-before date is stated on the product, its expiry within this period shall not be deemed a defect.
4. The statutory warranty period shall apply to claims for damages based on an intentional or grossly negligent breach of duty by the user. The same shall apply in the case of fraudulent intent and in the case of injury to life, body and health. Insofar as longer periods are prescribed by law in accordance with section 438, paragraph 1, no. 2 of the German Civil Code (buildings and items for buildings), section 445 b of the German Civil Code (right of recourse) and section 634a, paragraph 1 of the German Civil Code (construction defects), these periods shall apply. Our consent must be obtained before any goods are returned.
5. Claims for defects are completely excluded for used goods with the exception of the claims for damages mentioned in paragraph 4.
6. Any technical application specifications, maintenance, storage and care instructions supplied by us shall be observed by the customer and shall form an integral part of the contract.
7. If, despite all due care, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the foregoing provision without restriction.
8. Notices of defects/notifications of damage must always be notified to us without delay, in particular in the case of products with an expiry date/MHD. If a filled product (e.g. fruit paste, etc.) has already exceeded its shelf life at the time of notification of a defect, we shall generally reject a notification of damage.
9. If the supplementary performance fails, the customer may – irrespective of any claims for damages – withdraw from the contract or reduce the remuneration.
10. Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of the usability, in the case of natural wear and tear as well as in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, incorrect storage or due to special external influences which are not assumed under the contract. If the purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
11. Excess or short quantities of up to 10% shall be deemed insignificant. The same shall apply to production-related changes or changes to the design which do not restrict the usability of our products.
12. Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, including any dismantling and installation costs, shall be excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer’s place of business, unless the transfer is in accordance with their intended use.
13. The customer shall only have a right of recourse against us to the extent that the customer has not concluded any agreements with its customer that go beyond the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply accordingly to the scope of the purchaser’s right of recourse against the supplier.
14. If the customer asserts claims for defects and/or damages, the following information and data shall be transmitted to us by the customer without undue delay for inspection purposes and for the purpose of mitigating damages (whereby non-compliance shall not result in the loss of its rights):
• Date of the damage
• What happened in detail? Exact description of the damage
• Proof of the damage (e.g. pictures, videos, packaging material if relevant)
• Proof of the value of the goods (in the case of product loss), or information/estimates of the amount of the damage
• Product name, copy of order confirmation or invoice
• Serial number of the packaging
• Any receipts/invoices that serve as proof of damage
As far as our products were/are already in use:
• Immediate information about the damage by the injured party (very important for products with expiry date/MHD)
• Recipient name / company
15. IBA GmbH charges a flat fee of € 250.00 for the preparation of analyses/reports for the verification of notices of defects/notifications of damage and invoices this fee to the person who reported the notice of defects to IBA. Should it turn out in the course of the analyses and investigations that the IBA itself was the cause of the defect, this fee shall be waived.
1. This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation.
3. All agreements made between the parties for the purpose of executing this contract are set down in writing in this contract. Unless the law prescribes a stricter form, the written form shall also be complied with in any case if faxes or PDF documents bearing the signatures of the authorised signatories or other digital documents bearing a qualified signature are exchanged. werden.