Gebrüder Dorfner & Co. KG
Scharhof 1
92242 Hirschau
Germany
– hereinafter referred to as “Seller” –
and
Entrepreneurs, legal entities under public law and special funds under public law
– hereinafter referred to as “Buyer” –
1. these GTC apply to contracts for the delivery of goods, in particular, but not exclusively, raw materials such as kaolin or quartz sand and refined industrial mineral products, in accordance with the contract concluded between the seller and the buyer. These General Terms and Conditions of the Seller shall also apply to all future transactions with the Buyer, even if no express reference is made to these General Terms and Conditions in individual cases.
2. terms and conditions of the Buyer that conflict with or deviate from these GTC shall not apply unless the Seller has expressly agreed to their validity in writing. These GTC shall also apply if the Seller executes the orders without reservation in the knowledge of conflicting or deviating terms and conditions of the Buyer. Even then, the buyer’s general terms and conditions shall not become part of the contract. These GTC apply to all orders, whether placed on the Internet, in writing, by telephone or in any other way. In addition, the provisions of the German Commercial Code, the provisions of the German Civil Code and the Incoterms of the International Chamber of Commerce in Paris in the version current at the time of delivery or performance shall apply, unless otherwise stipulated in these GTC. Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or written confirmation by the seller.
1. offers of the seller are subject to change and non-binding unless otherwise agreed in writing. The Buyer’s order placed with the Seller is a binding offer by the Buyer. The Seller shall thereupon check the availability of the ordered products as well as any necessary freight charges and inform the Buyer accordingly on the basis of normal business operations. However, the contract with the Buyer shall only come into effect with the final order confirmation, which shall be issued close in time to the intended delivery. Order confirmations shall be sent to the address provided by the Buyer in its order or, in the case of an ongoing business relationship, to the last address provided.
2. supplements, amendments or ancillary agreements also require the written or textual confirmation of the seller to be effective.
3. the contract with the buyer is concluded subject to the reservation of correct and timely delivery to the seller by its suppliers. This so-called reservation of self-supply depends on the fact that a congruent legal transaction has been concluded with the supplier and that the seller is not responsible for the non-delivery. The Seller must inform the Buyer immediately of its own non-delivery and, in the event of withdrawal, reimburse the Buyer’s corresponding consideration – if any – without delay.
4. dimensions, weights, drawings, illustrations or other performance data are only binding if this is expressly agreed in writing or in text form. The Seller expressly points out that information in catalogs, brochures, circulars, advertisements, illustrations and price lists regarding weight, dimensions, capacity, colors and physical and chemical properties or performance are only approximately binding, as the Seller’s products are natural products that may be refined and/or mixed (also with synthetic products) and are subject to natural and nature-related fluctuations and differences.
5. based on the above under section 2.4, a product description is only binding if this has been expressly agreed between the contracting parties. The Buyer shall be obliged to check the suitability of the respective product for the use assumed by it and to obtain information from the Seller about tolerance ranges and technical application possibilities and experience.
6. the seller reserves the right of ownership and copyright to cost estimates, illustrations, drawings and other documents. The Buyer requires the express written consent of the Seller before passing them on to third parties. If a contract is not concluded, documents prepared individually for such prospective buyers shall be returned without request and in all other cases immediately upon request.
1. the written order confirmation by the seller shall initially be decisive for the scope of the seller’s obligation to perform.
2. the dates and deadlines stated by the Seller are approximate deadlines, unless expressly agreed otherwise in writing. This means that the Buyer may request the Seller in writing to deliver within a reasonable period of time after exceeding the non-binding deadline(s) for triggering default.
3. delivery and performance periods shall generally commence upon conclusion of the contract. If documents are required for the Seller’s performance or if an agreement is required between the contracting parties on the type of execution, the specific product or the clarification of the naturally possible tolerances or if official approvals are required for the performance, the delivery period shall commence when none of the aforementioned or no similar obstacles to performance exist.
4. to the extent that circumstances for which the Seller is not responsible impede, delay or temporarily render impossible the fulfillment of assumed delivery and performance obligations, the Seller shall be entitled to postpone the delivery/partial delivery or performance/partial performance by the duration of the impediment plus a reasonable start-up period.
5. to the extent that circumstances for which the seller is not responsible make it permanently impossible to fulfill the assumed delivery and performance obligations, the seller shall be entitled to withdraw from the contract in whole or in part. In particular, the Seller shall not be responsible for uninitiated official interventions, unforeseeable operational disruptions, disputes, lockouts, labor disruptions caused by political or economic circumstances, unavoidable shortages of raw materials or supplies, transport delays due to traffic disruptions and unavoidable events that occur at the Seller, its suppliers or in external companies on which the maintenance of the Seller’s operations depends. Such circumstances shall also include changes and the absence of documents to be provided by the Buyer which are necessary for the execution of the order. The Seller undertakes to inform the Buyer immediately of the impossibility of delivery or performance and to reimburse the Buyer’s consideration, which is not matched by delivery or performance, without delay.
6. if the hindrance (§ 3 clause 4) lasts longer than three months, the buyer shall be entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet performed.
7. if dispatch, collection or delivery of the goods is delayed as a result of circumstances for which the buyer is responsible or wishes, the goods shall be stored at the expense and risk of the buyer after the expiry of five working days, calculated from the day of notification of readiness for delivery. If the Buyer is in default of acceptance or culpably violates other obligations to cooperate, the Seller shall be entitled to demand compensation for the damage incurred in this respect, including any additional expenses. Further claims or rights, in particular in the event of default of acceptance in accordance with § 373 HGB, are expressly reserved. Reference is made to the Buyer’s obligations to cooperate in connection with delivery and removal options (§ 4 clause 5. of these GTC).
1. the written order confirmation shall initially be decisive for the scope of the Seller’s obligation to perform with regard to the delivery. If no such agreement has been made between the Buyer and the Seller, the Seller’s deliveries to the Buyer shall be ex works in accordance with Incoterms 2020.
2. if it has been agreed that the goods are to be shipped to a place specified by the buyer, the risk of accidental loss and accidental deterioration shall pass to the buyer as soon as the goods have been handed over to the person carrying out the transport, but at the latest when they leave the warehouse premises.
3. if it has been agreed that the Buyer shall collect the goods or have them collected, the risk of accidental loss and accidental deterioration shall pass to the Buyer upon the goods being made available for collection and notification thereof to the Buyer (“ex works” in accordance with Incoterms 2020), notwithstanding clause 2 above. The above shall also apply in the event of partial deliveries. The Buyer or its collector shall be responsible for the proper loading and securing of the load. If the Buyer is in default of acceptance or if performance is delayed for other reasons for which the Buyer is responsible, the risk shall pass to the Buyer from the date of notification of readiness.
4. the seller shall take out transport insurance at the buyer’s special request and at the buyer’s expense.
5. if the delivery is to be carried out by a carrier to be commissioned by the Seller (see section 2 above), the Buyer must ensure that the delivery and removal facilities at the place of delivery can be accessed by trucks with a permissible total weight of up to 40 tons. The Buyer shall organize the delivery and removal facilities with regard to personnel and/or local conditions in such a way that the protection obligations towards the Seller are met, i.e. in particular that no damage to the transport vehicles or delivery delays occur due to non-existent or inadequate delivery and removal facilities. Reference is made to § 3 clause 6 of these GTC.
1. the cancellation of orders or custom-made products is only possible with the express and written consent of the seller.
2. the seller does not check the samples, drawings and other documents provided for custom-made products for existing property rights. The responsibility lies solely with the buyer.
3. the Buyer shall be liable for all disadvantages and damages incurred by the Seller as a result of the Seller unknowingly infringing third-party property rights in the case of custom-made products on behalf of the Buyer. The Buyer is obliged to indemnify the Seller against all claims of third parties in this respect.
1. the weight of the consignment determined on the scales of the seller or the upstream supplier at the time of dispatch from the factory shall be decisive for the weight calculation, irrespective of the means of transport used for the delivery. Proof of weight shall be provided by presenting the weighing slip.
2. in the case of shipment of moist goods, differences with regard to the moisture content cannot be claimed within the scope of the influence of the weather.
3. deliveries of goods shall be made gross-for-net. Deviations from the gross weight of up to 3% shall be deemed to be a defect-free delivery.
1. deliveries on call by the buyer require a written agreement with the seller. Delivery dates must be confirmed in writing by the Seller.
2. in the absence of an express agreement to the contrary, the goods shall be available on call for a maximum period of 26 weeks. As far as possible, call-offs and type classifications shall be placed for essentially identical monthly quantities. Call-offs must be announced at least four weeks in advance.
3. if the call is not made on time, the seller may withdraw from the contract and demand compensation after a reasonable grace period set by him has expired without success.
1. the prices stated in the seller’s offers are only binding for the seller within the validity period of the offer.
(2) Unless otherwise agreed, the prices are generally “ex works” (Seller’s registered office or warehouse). They are therefore generally exclusive of the applicable VAT and do not include any transport, postage or packaging costs or insurance, customs duties or other ancillary charges (“ex works” according to Incoterms 2020). For deliveries within the EU, the buyer must provide his VAT ID number. If no VAT is due on a delivery, the Buyer must point this out in good time and provide the necessary evidence.
3. the prices stated in the offer / order confirmation (whichever is applicable) may be adjusted by the seller as follows: in the case of agreed deliveries, including on call, which are to be carried out more than 8 weeks after the order confirmation or which take place 8 weeks after the order is placed due to a delay for which the buyer is responsible, the prices may be adjusted by the seller to the corresponding extent due to changes in duties, raw material costs and labor costs which are included in the agreed price. In the event of several changes, a balance shall be struck. An adjustment shall only be made from a total change of 3%. Should the price change by more than 15% in relation to the price stated in the offer/order confirmation as a result of the price adjustment made, the Seller shall attempt to agree a new price adjustment with the Buyer by mutual consent. To this end, the Seller shall send the Buyer an amended price proposal. If an agreement on an adjusted price is not reached within 7 days of receipt of the amended price proposal by the Buyer, both the Seller and the Buyer shall be entitled to terminate the outstanding deliveries. Claims for damages, claims for performance and other liability claims based on the termination of outstanding deliveries are excluded.
1. unless otherwise agreed, claims of the seller are due immediately after conclusion of the contract and payable without deduction thirty days after receipt of the invoice or thirty days after delivery. The seller is entitled to hand over the object of purchase only concurrently with payment of the agreed purchase price.
2. the seller is entitled to offset payments by the buyer first against the buyer’s older liabilities. If costs and interest have already been incurred, the seller shall be entitled to offset the payment first against costs, then against interest and finally against the principal performance.
3. payment shall be made in cash or free of costs and charges to the seller’s business accounts specified in the invoice. Payment shall only be deemed to have been made when the seller can dispose of the amount. Money orders, checks and bills of exchange shall only be accepted on account of performance and all collection and discount charges shall be charged to the Buyer.
4. discounts granted for the purchase of a larger quantity (quantity discount) are subject to timely payment and complete acceptance of the goods. In the case of return shipments to which the seller has expressly agreed, but for which there was no legal obligation to take back the goods (goodwill return), the quantity discounts already granted for the entire shipment of goods from which the return shipment originates shall lapse, with a corresponding obligation on the part of the buyer to make subsequent payment.
5. in the event of non-compliance with the terms of payment or in the event of circumstances which become known to the seller after conclusion of the contract and which reduce the creditworthiness of the buyer not only insignificantly from a banking point of view and which make the realization of the seller’s claim appear to be concretely endangered according to his assessment, the seller expressly reserves the right to make the entire remaining debt due. This also applies in the case of acceptance of bills of exchange or checks. The Seller is also entitled to withdraw from contracts already concluded with the Buyer unless the Buyer makes an advance payment or provides other security at the Seller’s request and at the Seller’s discretion.
6. in the event of default in payment, the seller shall be entitled, without further reminder, to demand default interest from the buyer in the amount of 9 percentage points above the base interest rate in accordance with § 247 BGB. The right to claim higher damages for default remains reserved.
7. payments made by the buyer by direct debit are approved if the buyer does not object to the debit entry within 10 working days.
8. the buyer is only entitled to offset or withhold payment if his corresponding counterclaims are undisputed or have been legally established. The Buyer may assert a right of retention if the Seller’s price claim and the Buyer’s counterclaim are based on the same contractual relationship. The buyer agrees to the offsetting of his claims and liabilities against the seller.
1. the buyer must inspect the goods immediately after delivery by the seller and, if a defect is found, notify the seller immediately. If the Buyer fails to notify the Seller, the goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection. If such a defect is discovered later, notification must be made immediately after discovery; otherwise the goods shall be deemed to have been approved even in view of this defect. The timely dispatch of the notification is sufficient to preserve the rights of the buyer. The notification of defects does not release the buyer from his obligation to pay. He shall also bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of the defect and for the timeliness of the notice of defect.
2. as long as and insofar as justified defects are reported, the seller is obliged, at his discretion to be determined within a reasonable period of time, to deliver a defect-free item in exchange for the defective item or to remedy the defect.
3. the seller shall not be liable for material defects caused by unsuitable or improper use, storage or installation by the buyer or third parties commissioned by the buyer, normal wear and tear, faulty or negligent handling.
4. if the supplementary performance fails, the buyer has the right to a reduction in the purchase price or to rescind the contract.
5. in the event of a justified claim for subsequent performance, the seller is obliged to bear the expenses necessary for the purpose of subsequent performance, in particular the transport, travel, labor and material costs. Notwithstanding any further claims of the Seller, in the event of an unjustified notice of defects, the Buyer shall reimburse the Seller for the expenses incurred for the inspection and – if requested – for the elimination of the alleged defect.
6. guarantees are not given by the seller, nor does he assume a procurement risk irrespective of fault and does not vouch for the quality of the goods to be procured irrespective of fault.
7. the buyer’s warranty rights shall expire one year after delivery of the goods, unless a case of § 438 para. 1 no. 2 or § 479 para. 1 BGB exists. The limitation period shall not recommence as a result of subsequent performance. This warranty-specific shortening of the limitation period shall not apply in cases of injury to life, limb or health or in cases of intentional or grossly negligent breach of duty.
1. the seller retains title to the delivered goods until the purchase price has been paid in full and all claims arising from the existing business relationship with the buyer have been settled. In the case of a current account with the buyer, the entire reserved goods shall serve as security for the balance claim.
2. the reserved goods may not be pledged, transferred by way of security or otherwise encumbered with third-party rights.
3. the buyer shall only be entitled to resell the goods within the scope of his proper business operations and under the condition that he only transfers ownership to his customers when the latter have paid the price in full. The Buyer hereby assigns to the Seller by way of security – upon conclusion of the transaction with the Seller – all its future purchase price claims against its customers arising from this resale, without the need for a special declaration of assignment for the individual resale case. The seller accepts this assignment. In the event of a current account between the Buyer and its customers, the claim assigned by the Buyer in advance shall relate to the recognized balance and, in the event of the customer’s insolvency, to the then existing causal balance. At the same time, the Buyer undertakes to inform the Seller upon request of the names of the third-party debtors and the amounts of the assigned claims and to provide information required for the collection of the claim. The Buyer is authorized to collect these tacitly assigned purchase price claims until revocation by the Seller, which is permissible at any time. The Seller may revoke the Buyer’s rights under this Section 3 if the Customer does not properly fulfill its contractual obligations to the Seller, in particular if it is in default of payment.
4. in the event of processing/conversion of the reserved goods or their combination/mixing with another item, the seller shall acquire direct ownership of the new item. This shall be deemed to be reserved goods. If the reserved goods are processed/transformed or combined/mixed with other objects not belonging to the Seller, the Seller shall acquire co-ownership of the new object in the ratio of the value of the object of purchase (final invoice amount incl. VAT) to the other processed/transformed or combined/mixed objects at the time of processing/transformation or combination/mixing. In this case, the advance assignment pursuant to § 11 No. 3. of these GTC shall also be made in the ratio of the value of the object of purchase (final invoice amount incl. VAT) to the other processed/transformed or combined/mixed objects at the time of processing/transformation or combination/mixing, but at most in the amount of the final invoice amount of the object of purchase (incl. VAT) of the reserved goods. If the combination/mixing takes place in such a way that the Buyer’s item is to be regarded as the main item, it is agreed that the Buyer shall transfer co-ownership to the Seller on a pro rata basis. The Buyer shall keep the sole ownership or co-ownership thus created for the Seller.
5. in accordance with the above provisions, the buyer also assigns to the seller the claims to secure the purchase price claim which arise against a third party through the combination of the reserved goods with a property.
6. if the objects of purchase handed over are seized by a third party, the buyer is obliged to inform the enforcement officer of the retention of title. He is also obliged to notify the seller immediately by registered letter, enclosing the seizure protocol and an affidavit stating that the seized objects of purchase are identical to the objects of purchase handed over by the seller under retention of title and not yet fully paid for. Any necessary intervention costs shall be borne by the buyer.
7. the buyer is obliged to treat the reserved goods with care, in particular during transportation and storage, and to insure them against the usual risks such as fire, water and theft at his own expense. If the Buyer fails to comply with the insurance obligation despite a reminder from the Seller, the Seller may take out the insurance at the Buyer’s expense, disburse the insurance premium and collect it as part of the claim arising from the contract. The Buyer hereby assigns to the Seller all claims against the insurer or damaging party for the insured event as a matter of priority. The seller hereby accepts this assignment.
8. in the event of breach of contract by the Buyer, in particular in the event of default in payment or breach of obligations under this § 11 of the GTC, the Seller shall be entitled to take back the goods and the Buyer shall be obliged to surrender them, excluding any right of retention. If the goods subject to retention of title are in the possession of a third party, the Buyer is obliged to inform the Seller of the owner and whereabouts and to assign to the Seller any claims for restitution against the third party. The repossession of the goods subject to retention of title by the seller shall not be deemed a withdrawal from the corresponding contract. All costs arising from the repossession shall be borne by the Buyer.
9. if the realizable value of the reserved goods exceeds the total claim of the seller by more than 10%, the seller is obliged to release securities to this extent to the buyer and to transfer them back. The selection of the securities to be released is incumbent on the seller.
10. in the event of suspension of payments due to insolvency, at the latest upon application for the opening of insolvency proceedings against the assets of the buyer, the buyer is obliged to immediately separate out the goods subject to retention of title handed over by the seller and still available and the assigned receivables and to submit a precise list of these to the seller.
1. the seller’s liability for contractual breaches of duty and tortious claims is limited to intent and gross negligence. This does not apply to claims for damages due to injury to life, body and health of the buyer and claims due to the breach of essential contractual obligations. Insofar as the seller is not accused of intentional or grossly negligent breach of contract, he shall only be liable for the foreseeable, typically occurring damage.
2. the buyer may only claim damages in lieu of performance under the statutory conditions. The buyer may not claim compensation for futile expenses in accordance with § 284 BGB.
3. the buyer can only claim damages for delay (default) in the seller’s performance under the statutory conditions of § 286 BGB. The Seller shall not be in default under any circumstances as long as his performance is not rendered as a result of circumstances for which the Buyer is responsible.
4. insofar as the seller’s liability is excluded or limited, this limitation shall also apply to the liability for the actions of the seller’s vicarious agents and assistants.
5. the Seller shall not assume any liability for materials, order components, shipping instructions, processing instructions and the like provided by the Buyer, unless expressly agreed otherwise in writing. The Seller is not obliged to check these for compliance with statutory standards within the meaning of the Product Liability Act, the German Civil Code or other laws. In such cases, the Buyer shall be liable without limitation and shall indemnify the Seller in full against all third-party claims.
1. all rights to drawings, drafts and plans produced by the seller, in particular patent rights, copyrights and inventor’s rights, shall belong exclusively to the seller. All sales documents, such as catalogs, sample books, price lists, etc., which are made available to the Buyer shall remain the property of the Seller and must be returned at the Seller’s request.
2. the Buyer may use trademarks, trade names, other drawings and industrial property rights of the manufacturer or Seller only after prior written approval and only in the interest of the Seller.
3. the Buyer shall be responsible for ensuring that the Seller’s performance does not infringe the industrial property rights of third parties on the basis of the Buyer’s instructions regarding shapes, dimensions, colors, weights, etc. The Buyer shall indemnify the Seller against all third-party claims for infringement of such industrial property rights, including all judicial and extrajudicial costs.
The seller is entitled to process and store the buyer’s personal data within the framework and limits of existing data protection regulations.
1. these GTC and the entire legal relationship between the Seller and the Buyer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2. for all disputes arising directly or indirectly from the contractual relationship with buyers who have their administrative headquarters or a branch office within the European Union, Switzerland or the United Kingdom, the court in whose district the seller has its headquarters shall have exclusive jurisdiction. However, the seller is entitled, at its own discretion, to bring an action at the buyer’s registered office. For Buyers who do not have their registered office or place of business within the European Union, Switzerland or the United Kingdom, all disputes arising out of or in connection with the business relationship, including the formation, validity or termination of the contract, shall be finally settled by the International Chamber of Commerce (ICC) without recourse to the ordinary courts of law. The arbitral tribunal shall also decide on the validity of this arbitration agreement. The arbitral tribunal shall consist of one arbitrator. The place of arbitration shall be Munich. The language of arbitration shall be German.
3. to the extent permitted by law, the place of performance for all claims arising from the contract shall be exclusively the registered office of the seller.
4. the contract language is German only. Any translations are for information purposes only. In the event of discrepancies, the German version shall take precedence.
(as at: 2021)
Gebrüder Dorfner GmbH & Co. KG
A company of the Dorfner Group
Scharhof 1, D-92242 Hirschau
© Germany 2025
