General terms and conditions

General terms and conditions of SÜDWEST Lacke + Farben GmbH & Co. KG (Version of 1 April 2024)

1 General, scope

1.1 All (future) offers, deliveries, and other services of SÜDWEST Lacke + Farben GmbH & Co. KG – hereinafter also referred to consistently as “SÜDWEST” – that are provided to the purchasers defined in sections 1.4 to 1.7 are exclusively subject to these general terms and conditions.

1.2 Differing terms and conditions of the purchaser, or terms and conditions of the purchaser not contained herein, will not be recognised unless SÜDWEST has expressly agreed to their validity in text form. Any counter-acknowledgements issued by the purchaser referencing its own terms and conditions of business or purchase are hereby rejected.

1.3 If we and the purchaser agree any provisions that deviate from individual terms of these general terms and conditions, this shall not affect the validity of the remaining provisions of these general terms and conditions.

1.4 These general terms and conditions only apply to purchasers who are acting in a commercial or self-employed professional capacity when concluding the contract (traders as defined by Section 14 of the German Civil Code) and to legal persons under public law or to a special fund under public law.

1.5 These general terms and conditions only apply to purchasers whose relevant branch is located in the Federal Republic of Germany.

1.6 If the relevant branch is located outside of the Federal Republic of Germany, these general terms and conditions apply to all purchasers placing their order directly or through a SÜDWEST employee.

1.7 The relevant branch is the one that concludes the contract in its own name in each case.

1.8 If a framework agreement expressly refers to these general terms and conditions or if their validity is expressly agreed in some other manner, they may also apply in individual cases to contracts with purchasers who differ from those specified in sections 1.5 and 1.6.

2 Conclusion of contract, custom variants, subject matter of contract

2.1 Our offer is non-binding.

2.2 The purchaser is bound by a purchase order for a period of two weeks following receipt by SÜDWEST.

2.3 Subject to section 2.4, the contract is concluded if SÜDWEST does not reject the order within 14 days of receipt, upon confirmation of the order by SÜDWEST in written or text form, or upon fulfilment of the order, whichever is the sooner.

2.4 When orders are placed for deliveries of goods that are created or adapted according to the specific wishes of the purchaser (excluding tinted materials, hereinafter referred to as “custom variants”), or if something else has been expressly agreed with the purchaser, the contract is concluded when the customer accepts the confirmation of order from SÜDWEST – even implicitly.

2.5 Unless expressly stated as binding, the illustrations and drawings of our goods in brochures, promotional literature, and price lists, as well as the data contained therein (e.g. regarding materials, dimensions, or shape), are subject to change, and any errors therein are excepted.

2.6 SÜDWEST’s obligation to perform shall be determined by the agreement concerning the properties and condition of the goods, which must – as a minimum – be in text form, unless no express agreement has been made. Public statements by the manufacturer of a product that SÜDWEST markets under its own brand name, or statements by other third parties (e.g. advertising messages), do not describe the performance obligations of SÜDWEST.

2.7 SÜDWEST does not provide the purchaser with any guarantees on conclusion of the contract, unless this is expressly agreed in writing on an individual basis.

3 Application engineering information, details of product properties, orders for tinted materials

3.1 Application engineering information, application instructions, advice, and recommendations that are issued by SÜDWEST verbally or in writing to assist the purchaser or applicator are provided to the best of SÜDWEST’s knowledge at the time. They are non-binding and do not establish any contractual rights or secondary obligations under the purchase contract, unless otherwise expressly agreed. Under no circumstances do the information and recommendations provided by SÜDWEST release the purchaser and applicator from their obligation to independently verify the suitability of SÜDWEST products for the respective intended use.

3.2 Details of product properties do not constitute a guarantee of properties and condition or durability, unless they are expressly identified as such or agreed as such on the basis of an individual contract.

3.3 When placing orders for tinted materials (based on samples or colour charts), repeat orders (whether or not for the same colour), and/or when deliveries are split into multiple partial deliveries, it is important to note that colour shades can be altered and/or affected by factors such as the texture and absorption capacity of the substrate, the age of the comparison material, environmental influences, viscosity, drying time, setting time, and light conditions. As a result, slight deviations in colour shade, texture, viscosity, drying time, and setting time may occur. This is customary in the industry, known to the purchaser, and does not constitute a defect, unless the deviation is unreasonable for the purchaser to accept. The order number of the last colour shade ordered must be stated when re-ordering the same colour shade or requesting same-colour deliveries as part of a call-off order. Colour shade comparisons must be conducted under identical conditions. Prior to application, the purchaser shall check the accuracy of the colour shade in the context of the project, if applicable by creating a sample surface area; care must be taken to apply the product in batches.

3.4 a) In cases where colour shade samples and product texture samples (plaster, bricks, etc.) are produced through printing, any deviations in colour and texture compared to the samples are due to printing and/or material-related factors; they do not constitute defects, unless they are significant and unreasonable for the purchaser to accept. b) For small-format samples with applied material (plaster, bricks, etc.), the sample serves solely as a visual aid. It does not constitute a sample indicating product properties, e.g. texture, surface, colour shade. No commercial warranty is assumed for other properties on the basis of the sample and no liability can be derived from it. In this regard, the product information provided in the Technical Data Sheets shall always be authoritative. The sample might create a different impression on the viewer compared to what they thought they were ordering and/or when they subsequently use it on an actual project, particularly with regard to colour shade. Deviations do not constitute a defect, unless they are significant and unreasonable for the purchaser to accept.

3.5 The Technical Data Sheets, Safety Data Sheets, and declarations of performance that apply to the product in accordance with the European Construction Products Regulation form an integral part of the contract. The Technical Data Sheets and Safety Data Sheets are available for download from the “Produkte” (“Products”) area on the company website at www.suedwest.de or can be requested free of charge from SÜDWEST.

3.6 SÜDWEST products conform to the recognised rules of engineering, as well as the standards, directives, and official and legal regulations that are specified in the Technical Data Sheets, Safety Data Sheets, and declarations of performance that are applicable to the respective product in accordance with the European Construction Products Regulation. SÜDWEST does not accept any purchaser requirements beyond these.

4 Specified quantities, overdeliveries or underdeliveries, partial deliveries

4.1 Products are to be ordered by specifying quantities with reference to the products offered by SÜDWEST.

4.2 If quantities are communicated or ordered by providing details of surface areas, SÜDWEST will convert these areas into quantities based on experience. Depending on the substrate and how the product is applied in individual cases, the quantity delivered in specific instances may be up to 10 % higher or lower than the amount required for the specific project – as is customary in the industry.

4.3 When custom variants (section 2.4) and tinted materials are ordered, it might not be possible to produce the exact quantity for production-related reasons. Therefore, in line with industry practice, deliveries of up to 10 % more than the quantity ordered are permitted and must be paid for by the purchaser.

4.4 SÜDWEST is entitled to make partial deliveries and provide partial services, provided this is reasonable for the purchaser and the purchaser has an objective interest in partial delivery.

5 Delivery time, proviso concerning upstream supply difficulties, compensation for delays in performance

5.1 Delivery deadlines, times, and/or dates (hereinafter referred to as “time of delivery”) are to be expressly agreed on an individual basis or will be stated as binding by SÜDWEST in the confirmation of order. In all other cases, details of the time of delivery are non-binding.

5.2 If SÜDWEST cannot meet a binding time of delivery for reasons beyond the control of SÜDWEST (non-availability of product/service), SÜDWEST shall inform the purchaser of this without delay. SÜDWEST shall also communicate the estimated new time of delivery as soon as it possibly can. If the product/service is still not available at the new time of delivery and this is again due to reasons beyond the control of SÜDWEST, SÜDWEST will be entitled to withdraw from the contract, either in whole or in part; any consideration already provided by the purchaser will be refunded by SÜDWEST without delay. An instance of product/service non-availability in this sense shall be deemed to exist, in particular, in the event of force majeure (section 6) and in the event of late deliveries by SÜDWEST’s upstream suppliers.

5.3 Times of delivery will commence only after the purchaser has provided the documents and approvals that it must obtain, fully clarified all details regarding the desired execution and all technical issues, and fulfilled the agreed arrangements (e.g. advance payment). In the event of delays to the above, the delivery times will be postponed accordingly. If the customer requests a delivery before midday on the bindingly agreed day of delivery, SÜDWEST will endeavour to accommodate this request. This is without obligation and subject to the transportation capacity of SÜDWEST and/or of the shipping agent commissioned by SÜDWEST, and the road traffic conditions. If delivery is made before midday on the bindingly agreed day of delivery as requested, SÜDWEST will apply a delivery surcharge in accordance with the current price list.

5.4 In the event of a delivery delay, SÜDWEST shall be liable in accordance with the legal regulations; the extent of liability shall be determined according to section 12 below. However, the purchaser must always issue a reminder, which must – as a minimum – be in text form and set a reasonable deadline.

5.5 In the event of a partial delay or of partial impossibility, the purchaser may only withdraw from the entire contract or may only claim compensation for non-performance of the entire obligation if the purchaser has no interest in the partial fulfilment of the contract. In all other respects, the provisions of sections 5.2 to 5.4 apply mutatis mutandis to a partial delay.

5.6 In all other respects, the legal rights of the contracting parties remain unaffected, particularly in cases where the obligation to perform is excluded (e.g. because performance and/or supplementary performance are impossible or unreasonable).

6 Force majeure

6.1 “Force majeure” means the occurrence of an event or circumstance that hinders a party from fulfilling a contractual obligation, to the extent that the party affected by the hindrance (hereinafter referred to as “the affected party”) can prove (a) that the hindrance is beyond its reasonable control and (b) that the affected party could not have reasonably prevented or overcome its impact. Hindrances as defined in (a) include, inter alia, wars, civil wars, uprisings, acts of terrorism, piracy, currency and trade restrictions, embargoes, sanctions, official measures and decrees, expropriation, supply bottlenecks and material shortages, particularly energy or raw material shortages, epidemics, pandemics, natural disasters, and fires, unless the unaffected party proves otherwise.

6.2 If the conditions of section 6.1 are met, the affected party is released from its contractual obligation and any liability for breach thereof from the time when the hindrance makes performance impossible and to the same extent that the hindrance prevents performance, provided that the affected party notifies the other party without delay. If the notification is not issued immediately, the release will not take effect until the notification is received by the other party. Where applicable, the other party may suspend the fulfilment of its obligations from the time of the notification.

6.3 If the effect of the asserted hindrance or event is temporary, section 6.2 only applies for as long as the asserted hindrance prevents the contractual obligation from being fulfilled by the affected party. The affected party must inform the other contracting party as soon as the relevant hindrance no longer exists.

6.4 The affected party is required to rectify the force majeure event insofar as possible and to limit its impact to the maximum possible extent.

6.5 Notwithstanding this, SÜDWEST is entitled to withdraw from the contract, either in whole or in part, if the force majeure event persists for more than 4 weeks following the agreed delivery date.

7 Passing of the risk, transport, surcharge for small quantity logistics, pallets, packaging

7.1 As a basic principle, the agreed Incoterms clause applies to the passing of the risk and to transport. Any reference to Incoterms always means the Incoterms 2020, unless otherwise agreed in individual cases.

7.2 Unless otherwise agreed and subject to sections 7.3 to 7.5 below, SÜDWEST deliveries are always made DAP (Incoterms 2020) to the specified place, i.e. goods are delivered to the kerbside of the specified place. Unloading at the specified place is the responsibility of the purchaser.

7.3 Additional costs, e.g. for express freight requested by the purchaser, shall be borne by the purchaser. The same applies to additional costs incurred through air freight or the use of ferries.

7.4 For deliveries with an order value of less than EUR 600.00 (plus VAT), deliveries of goods from the EWIS product line with an order value of less than EUR 1,250.00 (plus VAT), and the delivery of insulation boards in volumes of up to 5 m³, SÜDWEST will apply the surcharge for small quantity logistics in accordance with the currently applicable price list.

7.5 In the case of delivery outside of Germany or to the German Baltic or North Sea islands, freight costs and any additional costs (section 7.3) are always payable regardless of the order value. The amount will be determined by the relevant price list or, where applicable, the confirmation of order.

7.6 A charge for pallets will be applied at the time of delivery according to the currently applicable price list.

7.7 The take-back of sales packaging is subject to the legal provisions, and SÜDWEST will comply with the requirements set out therein.

8 Obligations of the purchaser to cooperate, default of acceptance

8.1 The purchaser must ensure that transport vehicles with a total weight of at least 40 t, a width of 3.50 m, and a height of 4.00 m are able to access the parking or unloading areas without causing damage to the access road or the transport vehicle itself. The purchaser must ensure that the access road leading to the parking or unloading area is unobstructed at the agreed time of delivery or at the time of delivery announced in advance (section 5.1).

8.2 If the purchaser defaults in acceptance or fails to cooperate, or if the delivery is delayed for other reasons attributable to the purchaser, particularly if the delay is requested by the purchaser, the risk shall pass to the purchaser starting from the day when it is notified that the goods are ready for dispatch; however, SÜDWEST is required to arrange any insurance requested by the purchaser, at the purchaser’s expense. This does not affect the payment obligations of the purchaser.

8.3 In the case of section 8.2, SÜDWEST is also entitled to demand compensation for resulting loss or damage, including additional expenses (e.g. storage costs). For this, SÜDWEST will charge flat-rate compensation of EUR 1.00 for each working day and pallet space, starting from the delivery deadline or – in the absence of a delivery deadline – when the purchaser is notified that the goods are ready for dispatch. This does not affect the right to prove a higher level of loss or damage and legal claims (particularly the reimbursement of additional expenses, appropriate compensation, termination of contract); however, the flat-rate fee is to count towards any further monetary claims. The purchaser is entitled to prove that SÜDWEST incurred no loss or damage, or that the loss or damage was substantially lower than the aforementioned flat-rate fee.

9 Prices and payment

9.1 Prices are exclusive of the relevant VAT at the applicable statutory rate.

9.2 Invoices are payable immediately. In the case of custom variants (section 2.4) and tinted materials, advance payment always applies, unless otherwise agreed. If different payment terms are granted, they shall not apply generally, but only to the specific transaction referenced. When a calendar date is set as the payment deadline, this is the date that triggers default.

9.3 In the context of an ongoing business relationship, SÜDWEST is entitled at any time to require advance payment for further full or partial deliveries following appropriate notification by SÜDWEST.

9.4 The purchaser must check the accuracy and completeness of all invoices without delay. Objections to an invoice must be raised in writing within one month of receipt. Failure to raise timely objections will be deemed approval of the invoice.

9.5 The purchaser shall only have set-off rights if its counterclaims are based on the same contractual relationship, have been legally established as final and absolute, are undisputed, or are recognised by SÜDWEST.

9.6 The purchaser is only permitted to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.

9.7 If the purchaser decides to pay by SEPA corporate direct debit, it undertakes to provide SÜDWEST with the current SEPA forms, which must have been completed and signed. The amount will be debited on the date specified on the invoice. The parties agree that providing notification of the date on the invoice in this manner will suffice as notification of the planned debiting (prenotification). The purchaser must ensure that the designated account contains sufficient funds.

10 Reservation of title/ extended reservation of title

10.1 SÜDWEST reserves title to the products until all receivables arising from the business relationship with the purchaser – including future ones – have been fully settled (including all incidental receivables, such as interest) (hereinafter referred to as “goods subject to reservation of title”). If an open account arrangement has been agreed with the purchaser, the reservation of title will apply until the recognised balance of the open account is fully settled.

10.2 In cases where cash payment or advance payment has been agreed, title will transfer fully to the purchaser upon delivery.

10.3 The purchaser must treat the goods subject to reservation of title with care and, in particular, adequately insure them at its own expense at their replacement value against property insurance risks, particularly fire, storm, hail, and burglary.

10.4 The purchaser is also entitled to resell or further process the goods subject to reservation of title, including mixing and commingling, in the ordinary course of business.

10.5 The purchaser hereby assigns to SÜDWEST in advance any purchase price receivables, wage receivables, or other receivables relating to the goods subject to reservation of title that arise from their resale, further processing, or another legal reason (e.g. processing at a factory, an insured loss, or unlawful actions), including the recognised balance of an open account arrangement, up to the invoice value of the goods subject to reservation of title; SÜDWEST accepts the assignment. The assignment of receivables in accordance with sentence 1 above serves to secure all claims – including future ones – arising from the business relationship with the purchaser.

10.6 The purchaser has the revocable right to collect the assigned receivables in its own name on behalf of SÜDWEST. This collection authorisation may only be revoked if the purchaser fails to properly fulfil its payment obligations. In such an event, SÜDWEST must, at the vendor’s request, provide the details necessary for collecting the assigned receivables and make the relevant documentation available.

10.7 In the event of seizure, confiscation, damage, and/or the loss of the goods subject to reservation of title, the purchaser shall inform SÜDWEST without delay; any breach of this obligation will entitle SÜDWEST to withdraw from the contract. The purchaser shall, in particular, bear all costs in the context of third-party opposition proceedings that were necessarily incurred to successfully lift a seizure and, where applicable, successfully recover the goods subject to reservation of title, insofar as these costs cannot be recovered from third parties.

10.8 If the purchaser suspends payments, a petition is filed for insolvency proceedings against the purchaser’s assets, or if the goods subject to reservation of title are seized, the purchaser shall lose the right to resell or further process the goods subject to reservation of title, and to collect the assigned receivables. Subsequently received payments for assigned receivables must be immediately deposited into a separate account.

10.9 SÜDWEST undertakes, at the purchaser’s request, to release the securities held by SÜDWEST insofar as the realisable value of the securities exceeds the secured receivables by more than 10 % for more than a temporary period. If SÜDWEST is charged VAT when realising the security collateral as a result of the purchaser making a delivery to SÜDWEST that is subject to VAT, the aforementioned limit of 110 % will be increased by this VAT amount. The purchaser is also entitled to demand the release of securities if the goods transferred by way of security are estimated to be worth more than 150 % of the secured receivables. The choice of which securities are to be released is at the discretion of SÜDWEST.

10.10 If SÜDWEST has withdrawn from the contract definitively, SÜDWEST is entitled to take back the goods subject to reservation of title if reasonable notice of this action was given. The costs incurred by exercising the right of take-back, particularly in relation to transport, shall be borne by the purchaser. After taking back the goods subject to reservation of title, SÜDWEST is entitled to realise them and use the proceeds to satisfy the debt, provided that reasonable advance notice of this action was given. If the proceeds exceed the outstanding receivables from the contractual relationship, the excess amount will be given to the purchaser.

11 Notice of defects, rights in the event of material defects/take-back of goods

11.1 Unless otherwise stipulated below, the purchaser’s rights in the event of material defects and defects of title shall be governed by the legal regulations.

11.2 If the supplier has recourse within the supply chain upon final delivery of the goods to a consumer, the mandatory legal provisions shall always apply, but only to the extent that the purchaser has not made any agreements with its customer that exceed the statutory warranty claims. Such claims are excluded if the defective goods have been further processed by the purchaser or another trader to create a new item of movable property, e.g. by installing them in another product.

11.3 The purchaser’s claims for defects are contingent upon the purchaser having fulfilled its legal inspection and notification obligations. In any case, obvious defects must be reported in text form (e.g. in writing or by e-mail) within 5 working days (Saturday is not classed as a working day) of delivery and any hidden defects identified during the inspection within the same timeframe following discovery. If the purchaser fails to carry out the inspection and/or report the defect properly, SÜDWEST’s liability for the defect not reported in time or not reported properly will be excluded in accordance with the legal regulations.

11.4 If the delivered item is defective, SÜDWEST may – in the first instance – choose whether supplementary performance by SÜDWEST should consist of remedying the defect (remediation) or delivering a new item that is free of defects (replacement delivery). This does not affect the right to refuse supplementary performance in accordance with the legal requirements.

11.5 As a general rule, defect-free goods delivered by SÜDWEST will not be taken back. If defect-free goods are taken back by SÜDWEST, this will only apply to reusable SÜDWEST standard goods in proper condition and will only be done as a gesture of goodwill. If the goods are taken back, this will be done in such a way that SÜDWEST acquires the goods from the purchaser through a repurchase. The repurchase price will be at least 50 % of the amount originally invoiced to the purchaser for the goods being taken back, but no more than 90 % of this amount. The deduction from the originally invoiced amount will be made on a flat-rate basis to cover the costs incurred by SÜDWEST (e.g. for inspecting the goods or repackaging them). They will be settled via a credit note.

11.6 SÜDWEST is entitled to make the supplementary performance owed contingent upon the purchaser paying the outstanding purchase price, subject to the exercise of a right to withhold a reasonable portion of the purchase price that is proportionate to the defect.

11.7 The purchaser must grant SÜDWEST sufficient time and opportunity to provide the supplementary performance owed, and, in particular, must surrender the disputed goods for inspection or allow access to the processed or installed goods for this purpose. In the case of replacement delivery, the purchaser must return the defective item to SÜDWEST in accordance with the legal regulations.

11.8 The expenses that are essential for the purpose of carrying out the inspection and supplementary performance – particularly transport, travel, labour, and material costs – shall be borne by SÜDWEST if a defect actually exists. Otherwise, SÜDWEST may demand that the purchaser reimburse the costs incurred due to the unjustified defect remediation request (particularly inspection and transport costs), unless the lack of defect was not discernible by the purchaser.

11.9 If supplementary performance fails, or if a reasonable deadline set by the purchaser for supplementary performance has expired without result or does not need to be set according to the legal regulations, the purchaser may withdraw from the purchase contract or reduce the purchase price. However, in the case of an immaterial defect, there is no right of withdrawal.

11.10 Even in the case of defects, claims by the purchaser for compensation or for the reimbursement of futile expenses exist only in accordance with section 12and are otherwise excluded.

12 Extent of liability

12.1 Unless otherwise provided in these general terms and conditions, including the following provisions, SÜDWEST shall be liable in accordance with the legal regulations for any breach of contractual or non-contractual obligations.

12.2 As regards compensation, SÜDWEST shall – irrespective of the legal basis – bear unlimited liability based on fault in cases of intent and gross negligence, and, in cases where liability regardless of fault is mandatorily stipulated by law, shall, in particular, bear liability in accordance with the German Product Liability Act and under any warranty.

12.3 In the case of ordinary negligence, SÜDWEST shall – subject to any milder standard of liability mandated by legal regulations (e.g. standard of care in one’s own affairs) – only a) bear unlimited liability for loss or damage resulting from injury to life, limb, or health, b) bear liability for loss or damage arising from a significant breach of an essential contractual obligation (an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on which the contractual partners rely and are entitled to rely); in this case, however, SÜDWEST’s liability shall be limited to compensation for the typically occurring foreseeable loss or damage. Under no circumstances will SÜDWEST pay compensation for lost profit.

12.4 The limitations of liability under section 12.3 b also apply to breaches of duty by or for the benefit of persons whose fault is attributable to SÜDWEST under the legal regulations.

13 Rights of withdrawal and termination by the purchaser outside the law on material defects, prohibition of assignment

13.1 The purchaser may only withdraw from or terminate the contract due to a breach of duty not related to a defect if SÜDWEST is responsible for the breach.

13.2 The purchaser does not have a free right of termination (in particular, as specified in Section 648 of the German Civil Code). In all other respects, the statutory requirements and legal consequences apply.

13.3 The purchaser is not entitled to assign receivables due from SÜDWEST, particularly rights arising from material defects and claims for damages.

14 Limitation period

The statutory limitation period applies.

15 Credit agencies

15.1 SÜDWEST will send general company data of the purchaser, such as the company name and address, to commercial credit agencies before a purchase contract is concluded and regularly in the course of a continuing obligation or an existing business relationship, so that the credit agencies can cross-check the data against their own database to assess the purchaser’s creditworthiness and provide SÜDWEST with a corresponding credit report. SÜDWEST will also send data to these credit agencies and their payment experience pools concerning the contractual relationship and its performance in accordance with or deviation from the agreed terms. These credit agencies will save this data and send it to their contractual partners within the Single European Market in order to provide them with the information they need to assess the purchaser’s creditworthiness. The purchaser may obtain information directly from the credit agencies regarding the data stored about it there.

15.2 SÜDWEST hereby draws attention to the fact that, in accordance with Art. 6 (1) (f) of the GDPR, SÜDWEST sends data to SCHUFA concerning receivables that have not been paid despite being due, and that this data may be taken into account there in the determination of probability values (scoring). This happens in cases where the purchaser has been reminded at least twice in writing after the receivable became due, the first reminder was issued at least four weeks earlier, and the purchaser has not disputed the receivable.

16 Deterioration of financial situation and creditworthiness

16.1 If the purchaser suffers a deterioration in its financial situation after the conclusion of the contract, SÜDWEST shall be entitled to provide outstanding deliveries and services only against security. If the purchaser is not able to provide the required security within a reasonable period, SÜDWEST shall be entitled to withdraw from the contract.

16.2 The same applies if, after conclusion of the contract, SÜDWEST becomes aware of facts that give rise to legitimate doubts about the purchaser’s solvency or creditworthiness, unless the purchaser can prove that SÜDWEST was already aware of these facts on conclusion of the contract or should have been aware of them had it applied due diligence.

16.3 In the aforementioned cases, SÜDWEST shall, despite payment instructions to the contrary, be entitled to allocate the purchaser’s payments to the most recent receivables first, and shall, upon their allocation to the associated goods subject to reservation of title, waive any enhanced and/or extended reservation of title. SÜDWEST shall inform the purchaser of this and bear the interest disadvantage.

16.4 In the aforementioned cases, SÜDWEST is also entitled by virtue of the reservation of title agreed in section 10 to prohibit the further processing and resale of the delivered goods, and to revoke the collection authorisation according to section 10.6.

17 Place of performance, place of jurisdiction, and applicable law

17.1 As a basic principle, the place of performance for deliveries and payments is the registered office of the SÜDWEST company making the delivery.

17.2 If the purchaser is a merchant, legal person under public law, or a special fund under public law, or if the purchaser or the branch of the purchaser concluding the contract has its registered office outside the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from the contractual relationship is Ludwigshafen. The same applies if the purchaser does not have a general place of jurisdiction within Germany, relocates its registered office, domicile, or habitual residence outside of Germany after the conclusion of the contract, or if its registered office, domicile, or habitual residence is unknown at the time when the action is brought. SÜDWEST is, however, always entitled to take action against the purchaser at the latter’s general place of jurisdiction.

17.3 The law of the Federal Republic of Germany applies exclusively to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

17.4 Should a provision of these general terms and conditions be or become ineffective, the effectiveness of the other provisions shall remain unaffected.