Export conditions

(Status 01.07.2020)

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 1.5 to 1.6 shall be based exclusively on these terms and conditions of export.

1.2 Differing terms and conditions of the purchaser, or terms and conditions of the purchaser not contained in these terms and conditions of export, 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 SÜDWEST and the purchaser agree any provisions that deviate from individual terms of these terms and conditions of export, this shall not affect the validity of the remaining provisions of these terms and conditions of export.

1.4 These terms and conditions of export do not apply in cases where the purchaser is buying the goods for personal use or for use within their family or household and SÜDWEST was or should have been aware of this at the time of the contract’s conclusion.

1.5 These terms and conditions of export only apply to purchasers whose registered office or relevant branch is located outside of the territory of the Federal Republic of Germany.

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

2 Conclusion of contract, small quantity orders, 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, 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 (including tinted materials, hereinafter referred to as “custom variants”) or if something else has been expressly agreed with the purchaser, the contract is concluded upon confirmation of order. However, in the case of tinted materials, section 2.3 applies.

2.5 Unless expressly stated as binding, the illustrations and drawings of the 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, 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 text form on an individual basis and the agreement is signed.

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. 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.

3.4 All SÜDWEST colour shade samples are produced using a printing process. The purchaser is aware of this. Minor deviations in colour shade compared to the original shades are due to the printing technology and/or material; they do not constitute a defect, unless they are unreasonable for the purchaser to accept. The colour shade samples provide no indication of the gloss level or surface texture of any product.

3.5 The Safety Data Sheets that apply to the respective product form an integral part of the contract. These can be requested free of charge from SÜDWEST.

3.6 SÜDWEST products conform to the recognised rules of engineering, as well as the relevant standards, directives, and official and legal regulations in Germany. 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) 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/less 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, hindrances, breach of contract due to delayed delivery

5.1 Binding 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 expressly 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 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. In the case of custom variants (section 2.4), production or procurement – and consequently, the delivery deadline – will not commence under any circumstances before payment is made.

5.3 The delivery deadline will be deemed to have been met if the risk passes to the purchaser in accordance with section 6.1 before the deadline expires.

5.4 If SÜDWEST is unable to meet the delivery obligation, or unable to meet it on time, due to a hindrance beyond SÜDWEST’s control that SÜDWEST could not have reasonably foreseen at the time of the contract’s conclusion, the delivery deadline will be extended as appropriate. Hindrances beyond SÜDWEST’s control include, in particular, the failure of SÜDWEST’s upstream suppliers to make proper and timely deliveries (provided that SÜDWEST placed the order properly and on time with carefully selected suppliers). SÜDWEST shall notify the purchaser as soon as possible of the beginning and end of the hindrance. If the hindrance lasts longer than three months or if it is clear that it is going to last longer than three months, both the purchaser and SÜDWEST are entitled to cancel the contract.

5.5 In the event of a breach of contract due to delayed delivery, 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 and set a reasonable deadline.

5.6 In the event of a partial delay or of partial impossibility, the purchaser may only cancel the entire contract and claim associated damages if the partial non-performance constitutes a fundamental breach of contract. In all other respects, the provisions of sections 5.4 and 5.5 above apply mutatis mutandis to a partial delay.

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

6.1 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.

6.2 Unless otherwise agreed and subject to sections 6.3 to 6.5 below, SÜDWEST always makes delivery FCA (Incoterms 2020) at the warehouse, Böhl-Iggelheim.

6.3 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.

6.4 For deliveries with an order value of less than EUR 5,000.00 (plus VAT), deliveries of goods from the Malfa product line with an order value of less than EUR 5,000.00 (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.

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

7 Obligations of the purchaser to cooperate, acceptance

7.1 The purchaser must ensure that transport vehicles with a total weight of 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).

7.2 If bulky goods are to be delivered, unloading at the destination will require special preparation and equipment, which must be provided by the purchaser. Advance notice of this shall be given by the purchaser.

7.3 Unless otherwise agreed, the purchaser is required to take receipt of the goods within ten calendar days of receiving notification that the goods are available at the SÜDWEST warehouse in Böhl-Iggelheim. If the purchaser defaults on acceptance, fails to cooperate as required, or if the delivery is delayed for other reasons attributable to the purchaser, particularly if the delay is requested by the purchaser, and this acceptance deadline is exceeded by more than three days, it shall constitute a fundamental breach of contract, thereby entitling SÜDWEST – without prejudice to any other legal remedies – to arrange the dispatch of the goods to the purchaser, along with all associated formalities, at the purchaser’s expense, risk, and account. Non-acceptance of the goods will not affect the purchaser’s obligation to pay the purchase price.

7.4 If the purchaser breaches its acceptance obligation, fails to cooperate as required, or if the delivery is delayed for other reasons for which the purchaser is responsible, SÜDWEST shall be entitled to demand compensation for the 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 assert 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.

7.5 In the case of section 7.3, the risk shall pass to the purchaser as soon as it is notified that the goods are ready for acceptance; however, SÜDWEST must arrange any insurance required by the purchaser at the latter’s request and expense.

8 Prices, terms of payment

8.1 Prices are net in accordance with the agreed INCOTERMS clause and exclusive of packaging costs.

8.2 Invoices are payable immediately. If payment due dates are granted, they shall not apply generally, but only to the specific transaction referenced. When a calendar date is set as the payment due date, this is the date that triggers a fundamental breach of contract by the purchaser if this deadline is missed.

8.3 If the purchaser fails to pay the purchase price on time, SÜDWEST may – without prejudice to any other legal remedies – demand damages at a rate of nine per cent above the base rate of the European Central Bank. SÜDWEST retains the right to prove a higher level of actual loss or damage.

8.4 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, provided that it states the reasons.

8.5 Purchase price claims are due immediately if they relate to custom variants (section 4.3) or if advance payment has been agreed. The goods will only be produced or procured following receipt of payment. The preceding shall apply mutatis mutandis in cases where a letter of credit is agreed as security for the purchase price claim.

8.6 The purchaser must check the accuracy and completeness of all invoices without delay. Objections to an invoice must be raised in text form (e.g. in writing, by fax, or by e-mail) within one month of receipt. Failure to raise timely objections will be deemed approval of the invoice.

8.7 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.

8.8 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 Transfer of title, securing of purchase price claim

9.1 In cases where advance payment has been agreed and made, title will transfer fully to the purchaser upon delivery.

9.2 In all other cases, SÜDWEST reserves title to the products until the purchase price – as defined in section 8.1 – has been paid in full (hereinafter referred to as the “goods subject to reservation of title”).

9.3 If such a reservation of title is not effective under the applicable law, the parties shall agree on a functionally equivalent means of security and ensure it is effective.

9.4 The purchaser is obligated to take all necessary measures to preserve this reservation of title or a functionally equivalent means of security recognised in the country of destination (where the purchaser’s registered office is located). If the purchaser breaches this obligation, it shall constitute a fundamental breach of contract.

9.5 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.

9.6 In the event of seizure, confiscation, damage, and/or the loss of the goods subject to reservation of title or the means of security, the purchaser shall inform SÜDWEST without delay; any breach of this obligation will entitle SÜDWEST to cancel the contract. The purchaser shall bear all costs 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.

9.7 If SÜDWEST has cancelled the contract, 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.

10 Inspection obligation and obligation to give notice of defects

10.1 The purchaser must inspect the goods and any documents sent, or have them inspected on its behalf, without delay after taking receipt of them.

10.2 If, on taking receipt of the goods, it is apparent that the goods and/or documents do not conform to the contract, the purchaser shall notify SÜDWEST in text form without delay, and no later than one week after taking receipt, while also specifying the precise nature of the non-conformity.

10.3 The purchaser shall lose the right to invoke the contractual non-conformity of the goods – including if this only becomes detectable at a later date – if the purchaser fails to notify SÜDWEST in text form of the non-conformity and its precise nature within one week of when it was or should have been identified, regardless of the reasons provided by the purchaser for failing to meet these requirements.

10.4 The purchaser must have sent its notice of defects within one week of taking receipt of the goods or of identifying the contractual non-conformity; a further requirement is that SÜDWEST must have actually received the notice of defects that was sent on time.

10.5 If a contractual non-conformity of the goods cannot be identified following the purchaser’s notice of defects, the purchaser must reimburse SÜDWEST for the costs incurred in connection with inspecting the goods.

11 Contractual non-conformity of the goods

11.1 The purchaser must grant SÜDWEST sufficient time and opportunity to provide the performance owed, and, in particular, must surrender the disputed goods for inspection or allow access to the processed or installed goods for this purpose.

11.2 Unless otherwise stipulated in the contract or indicated by the circumstances surrounding its conclusion – particularly the negotiations conducted – a contractual non-conformity does not automatically exist merely because the goods do not conform to the technical and other standards applicable in the country of destination (where the purchaser’s registered office is located).

11.3 Deviations due to the causes specified in sections 3.3 and 3.4 do not constitute a breach of contract.

11.4 Complaints by the purchaser are always excluded if they are attributable to the fact that the purchaser has admixed diluents, hardeners, additional paints, or other components that were not procured from SÜDWEST in its capacity as a manufacturer or supply company, or if they were admixed in contravention of SÜDWEST’s application engineering information. The same applies if other application engineering information from SÜDWEST is ignored during application.

11.5 In the event of contractual non-conformity of the goods or documents, SÜDWEST shall be entitled to rectify this even after the agreed delivery time through remediation of the defect or – in the event of a fundamental breach of contract – through replacement delivery. This does not affect the right to refuse performance in accordance with the legal requirements. In the case of replacement delivery, the purchaser must return the defective item to SÜDWEST in accordance with the legal regulations.

11.6 If the contractual non-conformity of the goods or documents is not rectified within a reasonable period through remediation of the defect or replacement delivery, the purchaser may demand a reduction in the purchase price commensurate with the diminished value of the goods.

11.7 In the event of contractual non-conformity of the goods or documents, the purchaser has no right to demand cancellation of the contract or to withdraw from it instead of seeking a reduction in the purchase price, unless the contractual non-conformity constitutes a fundamental breach of contract. No fundamental breach of contract shall exist if SÜDWEST rectifies the contractual non-conformity within a reasonable period of grace set by the purchaser, which must be a minimum of six weeks.

11.8 Supplier recourse within the supply chain is excluded if the goods are ultimately delivered to a consumer.

11.9 Goods delivered by SÜDWEST that conform to the contract will not be taken back.

11.10 SÜDWEST is entitled to make the performance owed contingent upon the purchaser paying the outstanding purchase price for the delivered goods, subject to the exercise of a right to withhold a reasonable portion of the purchase price that is proportionate to the breach of contract.

11.11 Even in the case of a breach of contract, claims for damages by the purchaser shall exist only in accordance with section 12 and are otherwise excluded.

12 Extent of liability

12.1 Subject to sections 12.2 and 12.3 below, SÜDWEST shall, in all cases of contractual and non-contractual liability, pay damages exclusively in accordance with the following limits:

12.1.1 Liability for ordinary negligence is restricted to 30 % of the net invoice value and, for financial losses, to a maximum of 10 % of the net invoice value.

12.1.2 Furthermore, SÜDWEST shall – insofar as SÜDWEST is insured against the loss or damage incurred – be liable within the limits of the insurance cover and subject to the condition precedent of insurance payout.

12.1.3 SÜDWEST is not liable for lost profit.

12.1.4 Claims arising from SÜDWEST’s negligent failure to disclose negative properties of the products are excluded – provided that this does not give rise to any contractual non-conformity of the goods – unless SÜDWEST has additionally provided express advice to the purchaser.

12.2 As regards damages, 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 bear unlimited liability for loss or damage arising from injury to life, limb, or health.

12.4 SÜDWEST retains the right to plead contributory negligence.

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

13 Limitation period

The purchaser’s right to assert warranty rights shall lapse according to the statutory provisions.

14 Assignment

The purchaser is not entitled to assign receivables due from SÜDWEST, particularly claims for damages.

15 Credit agencies

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, where applicable, 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.

16 Objection based on deterioration, anticipatory breach

16.1 If, after the conclusion of the contract, the purchaser suffers a deterioration in its financial situation or if, after the conclusion of the contract, SÜDWEST becomes aware of facts that create legitimate doubts as to the purchaser’s solvency or creditworthiness, SÜDWEST shall be entitled to suspend performance and to provide any outstanding deliveries and services only upon provision of security by the purchaser.

16.2 If the purchaser is not able to provide the required security within a reasonable period, SÜDWEST shall be entitled to cancel the contract.

16.3 The provisions of the United Nations Convention on Contracts for the International Sale of Goods apply in this regard.

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 SÜDWEST.

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. In the cases set out in sentence 1, SÜDWEST is, however, also entitled to take action against the purchaser at the latter’s general place of jurisdiction.

17.3 The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) applies to the contract. Any legal issues that are not governed by this convention or that cannot be decided in accordance with its basic principles are subject to German law.

18 Final provisions

18.1 SÜDWEST and the purchaser are mutually obliged to take all reasonable measures necessary to achieve the purpose being pursued via the contract and to refrain from all actions that would interfere with achieving and upholding the contract.

18.2 Should any provision of these terms and conditions of export be or become ineffective, it shall not affect the effectiveness of the remaining contractual provisions. In the event of a gap in the contractual provisions, the parties shall fill this gap in the manner required to achieve the purpose of the contract and in a way that is appropriate to take account of both parties’ interests. This shall apply mutatis mutandis in the event of the ineffectiveness of any provision.