Terms and Conditions of Sale and Delivery
All sales to traders within the meaning of section 14 of the German Civil Code (BGB), legal entities under public law, and public-law special funds are subject to the following Terms and Conditions of Sale and Delivery. Any other terms and conditions – including without limitation any purchase terms and conditions of Purchaser – are subject to our express written confirmation ( in acc. with the last sentence of section 1(a) herein above).
Section 1 – Offer and Acceptance
a) Our offers are subject to change without notice. Purchase orders are not binding on us unless we have acknowledged in writing or commenced carrying out such purchase orders. Written agreements, representations and warranties given by our employees – with the exception of executive bodies, authorized signatories and holders of a general power of attorney – in connection with the entry into the contract become binding only upon our written confirmation. Waiver of this requirement for writing and signing must also be made in writing and signed. In case of communications by fax and/or e-mail such requirement is deemed to be satisfied.
b) Additional clauses used in the description of goods, such as “circa”, “as delivered previously”, “as usual” or similar additions to our offers refer exclusively to the quality or quantity of the goods, not however to the price. We shall interpret corresponding details included in the Purchaser’s purchase orders accordingly.
c) The quantities specified by us are approximate. In case of deliveries in dismountable tanks, fixed tanks, or silo vehicles differences of +/- 10% of the agreed quantity shall be deemed to be in compliance with the contract. The agreed purchase price is increased or reduced, as the case may be, on the basis of such differences.
Section 2 – Purchase Price and Payment
a) Our prices are subject to VAT, taking into account the relevant place of delivery. The price calculation is made on the basis of the volume or weight determined by us or our suppliers. It can, however, be made on the basis of the volumes or weights determined by the recipient, if such determination is carried out using standardized instruments and the goods have been transported at our risk.
b) Except as otherwise agreed in writing (in acc. with the last sentence of section 1(a) herein above ), the purchase price is due upon delivery of the goods net without deduction.
c) If the payment date expires without payment, we are entitled to charge interest in the amount of 5 percentage points above the base lending rate.
d) In the event of default on payment we charge interest on arrears at a rate of 8 percentage points above the base lending rate and reserve the right to claim compensation for any further damages.
e) Checks and bills of exchange are accepted as conditional payment only and subject to prior agreement. Any bank fees involved in payment procedures are for the account of the Purchaser.
f) The Purchaser may only set off counterclaims against our payment price which are undisputed or legally enforceable or which have arisen from the same contractual relationship. The Purchaser is only entitled to rights of retention which are based on the same contractual relationship or based on undisputed or legally enforceable counterclaims.
g) If the Purchaser defaults, in whole or in part, on its payment obligation, we are entitled to accelerate the due date for payment for the entire unpaid balance with the exception of claims expired by limitation, even where we have accepted bills of exchange and/or checks. In such a case we are also entitled to make any future deliveries conditional upon payment of a deposit or security. If, notwithstanding a reminder of payment, such payment or security is not made or given within a reasonable period of time, we are entitled to rescind the contract and claim damages.
h) If the Purchaser suffers a major deterioration in its financial circumstances, thus putting at risk our claims, the provisions laid down in paragraph (g) hereof shall apply including where such circumstances, which were in existence before the conclusion of the contract, come to our knowledge only at a later point in time.
Section 3 – Delivery
a) The agreed delivery periods and dates are always approximate unless a fixed date has been specifically agreed in writing ( in acc. with the last sentence of section 1(a) herein above).
b) For deliveries that do not affect our operations (drop shipment delivery) delivery dates and deadlines are deemed to have been met, if the goods are dispatched from the supplying location in time to reach their destination on time allowing for the usual shipping period.
c) In the event of force majeure – including without limitation public legal restrictions such as strikes and lockouts – the period of delivery shall be extended reasonably, however by not less than the period of time required to remedy the disruption to the extent that the disruption affects the production or delivery of the consignment. In the event of permanent breakdown caused by force majeure we, too, are entitled to rescind the contract. In the event of rescission, any payments made in advance shall be immediately reimbursed. If we intend to rescind the contract in accordance with the provisions herein above, we shall give two weeks’ notice thereof. A permanent breakdown within the meaning of this paragraph is assumed to have occurred if the disruption continues for more than five weeks. The Purchaser’s right to withdraw from the contract in accordance with the legal provisions is not affected hereby.
Damages for breach of duty are excluded in such cases.
This also applies in case of delays in delivery on the part of our own suppliers for which delays we are not responsible.
We shall notify the Purchaser as soon as reasonably possible of any such events of force majeure and delays in delivery caused by our own suppliers.
d) With regard to our own delivery obligations, we are not liable for impossibility of performance or delayed performance for reasons that are beyond our control, including if and to the extent that such impossibility of performance or delayed performance are due to circumstances for which the Purchaser is responsible, including without limitation Purchaser’s compliance with public legal obligations under Regulation (EC) No. 1907/2006 (REACH Regulation) as amended from time to time.
Section 4 – Dispatch and Acceptance
a) The Purchaser shall bear the risk of transport from the delivery facility, including in cases where shipping is free of charge or prepaid.
b) If the Purchaser collects the goods from the delivery facility, the Purchaser or its agent shall load the vehicle and satisfy all legal requirements, including without limitation legal requirements for the transport of hazardous goods.
c) The Purchaser bears sole responsibility for unloading and storing of the goods.
d) Where deliveries are made in tankers and dismountable tanks, the Purchaser shall ensure that its tanks and any other storage containers are in faultless technical condition and shall procure connection of the filling pipes to its own receiving system at its own responsibility or shall, if necessary, cause the recipient to meet this requirement. Our own obligations are limited to operating the delivery vehicle onboard equipment.
e) Where our employees provide assistance in the cases described in paragraphs (b) and (d) herein above in unloading or discharging, as the case may be, such employees act at the sole risk of the Purchaser and not as our vicarious agents. The Purchaser shall bear any costs resulting from down times and waiting times.
Section 5 – Packaging
a) Where we deliver goods in returnable packaging, such returnable packaging shall be returned to us empty and in good condition no later than 30 days from the date of delivery to the Purchaser’s facility at the Purchaser’s own risk and expense, or shall, where applicable, be returned to our delivery vehicle free of charge against receipt.
b) If the Purchaser fails to meet its obligations laid down in paragraph (a) hereof in due time, we are entitled to charge a reasonable fee for any period of time exceeding the above period of 30 days and to demand payment of the replacement price of the returnable packaging – setting-off against such payment the afore-mentioned fee – if a deadline set for return has passed without result.
c) Identification symbols provided on packaging must not be removed. Returnable packaging must not be substituted nor refilled. The Purchaser is liable for any deterioration of value due to substitution or loss. Any judgement hereon shall be based on our findings upon the arrival of such returnable packaging at our premises. Unless otherwise agreed in writing ( in acc. with the last sentence of section 1(a) herein above), returnable packaging shall not be used for storage or passed on to third parties.
d) The Purchaser shall empty or procure the emptying of tank wagons, if applicable, and shall return such tank wagons to us or to any address specified for this purpose in proper condition as soon as reasonably possible. If the Purchaser defaults on returning such tank wagons, the Purchaser is responsible for any costs caused by the default.
Article 6 – Reservation of Ownership
a) The right of ownership to the goods supplied by us (“Reserved Goods”) is not assigned to the Purchaser until full payment of the purchase price and settlement of all other debts including any future debts arising from the business connection with us. This also applies if payments are made against specially designated debts. If an invoice is still outstanding, the retained title shall serve as a security for the balance due to us.
b) As long as the Purchaser is not in default with performance of any of its obligations towards us, the Purchaser is entitled to use the Reserved Goods in the ordinary course of business; provided, however, that the Purchaser shall assign to us all claims resulting from resale in accordance with paragraph (e) herein below.
c) Any treatment or processing of the Reserved Goods shall be carried out on our behalf without obligation to us. We are deemed to be a manufacturer within the meaning of section 950 of the German Civil Code (“BGB”) and acquire co-ownership of the intermediate and final products in proportion of the invoice value of our Reserved Goods to the invoice values of the third party goods which the Purchaser holds in safe custody on our behalf and free of charge.
The same applies to any connection or combination of Reserved Goods with third party goods within the meaning of sections 947 and 948 of the BGB.
d) For the purpose of securing our claims against the Purchaser, the Purchaser hereby assigns to us all claims against third parties arising from the resale of Reserved Goods. If the Purchaser sells goods of which we only have partial ownership under paragraph (c) herein above, the Purchaser shall assign to us its claims against the relevant third parties on a pro-rated basis. Where the Purchaser sells the Reserved Goods together with other goods not supplied by us, the Purchaser hereby assigns to us a first-ranking share in the claim from the resale equal to the invoice value of our Reserved Goods. Where the Purchaser uses the Reserved Goods under a contract for work or a similar contract, the Purchaser assigns the corresponding claim to us.
e) The Purchaser is entitled to collect claims arising from the further use of Reserved Goods in the ordinary course of business. If we become aware of any facts that point to a significant deterioration in the Purchaser’s financial situation and if the Purchaser defaults on any payment(s) due to us, then the Purchaser shall at our request notify its customers of the assignment, shall refrain from disposing of the debts in any way, shall give us all the necessary information about the stock of goods which are our property and any claims assigned to us, and shall provide us with the necessary documents to enforce the assigned claims. The Purchaser shall notify us as soon as reasonably possible about any third party seizure of the Reserved Goods and/or the assigned claims.
f) If the value of any security due to us exceeds the total claim against the Purchaser by more than 10%, we shall, at the Purchaser’s request, release excess security to be selected at our option.
Section 7 – Liability for Defects
a) The internal and external properties which the goods must have depend on the agreed specifications, or, in the absence of such specifications, on our product descriptions, identifications and specifications, or, in the absence thereof, on customary usage of trade. References to standards or similar regulations, details provided in safety data sheets, details on the usability of the goods and statements made in advertisements shall not be deemed to constitute representations or warranties, or declarations of conformity. Identified uses under the REACH Regulation (EC) No. 1907/2006 that are relevant to the goods shall constitute neither an agreement on the corresponding contractual quality oft the goods nor any designated use under the terms of this contract.
b) If we provide consultation to the Purchaser either verbally, in writing or by means of trials, we do so to our best knowledge, however without assuming any liability, and such consultation does not release the Purchaser from its obligation to inspect the delivered goods for suitability for the intended processes and purposes.
c) Inspection of goods and notification of defects are subject to the relevant legal provisions, including without limitation section 377 of the German Commercial Code (“HGB”), provided that the Purchaser shall notify us of any defects in writing ( in acc. with the last sentence of section 1(a) herein above).
If the goods are delivered in packages, the Purchaser shall additionally check the labelling of each individual package to ensure that it is in compliance with the purchase order. Moreover, prior to discharging the goods, the Purchaser shall make sure that the goods are in compliance with the contract by taking a sample in accordance with standard practice.
d) Having been notified in due time of any existing defects, we shall, at our option, either remedy the defect or supply defect-free goods (supplementary performance). Where supplementary performance fails or is refused, the Purchaser is entitled to exercise its legal rights; any claims for damages are subject to the provisions in Section 8 hereof.
If the claimed defect is not substantial and/or the goods have already been sold, processed or transfigured, then the only remedy available to Purchaser is a reduction in the purchase price.
e) Further claims are excluded according to the provisions of Section 8 hereof. This applies in particular to claims for damages which are consequential to defects and do not exist in the goods as such (“damages arising out of a defect”).
Section 8 – General Limitation of Liability, including in Case of Default and Faulty Delivery, and Statutory Limitation of Claims Based on Defects
a) In the event of negligent breach of a material obligation (fundamental breach of contract) our liability for damages – which extends to our officers and vicarious agents – is limited to contractually relevant damage or loss foreseeable at the time of entry into the contract. Material obligations are those obligations the fulfilment of which is of the essence for the proper performance of the contract and the observation of which Purchaser may rely on in the due course of business and also those obligations the violation of which jeopardises the purpose of the contract. Save as provided herein, our liability for damages, including our liability for defects and consequential harm caused by a defect our liability, is excluded unless otherwise agreed herein below.
b) The above limitations are not effective where we have liability under the German Product Liability Act, liability for damages resulting from injury to life, body or health, or where we have fraudulently concealed defects in the goods or if we have given a warranty or assumed a supply risk and are liable for violation thereof or if the claim for damages is based on intent or gross negligence on the part of ourselves or our vicarious agents. The provisions concerning the burden of proof shall not be affected.
c) Unless otherwise agreed, any warranty claims which the Purchaser may have against us shall expire by limitation within one year after the goods have been delivered to the Purchaser, unless:
(1) the product delivered by us is an item that has been integrated in a building structure in accordance with the customary use of that product and has caused the defectiveness of that building structure, or
(2) the claims are claims under section 479 of the BGB, or
(3) the defect is due to intentional or fraudulent breach of duty on the part of ourselves or any of our legal agents and/or vicarious agents, or
(4) the claims are claims for compensation of damages, or
(5) the claims are based on a supply risk that we have assumed or a warranty that we have given.
The cases listed in paragraphs (1) to (5) herein above are subject to statutory periods of limitation. The legal provisions on suspension, interruption and recommencement of the statute of limitations apply.
Section 9 – REACH
If the Purchaser notifies us of a use in accordance with Article 37.2 of the Regulation (EC) No. 1907/2006 of the European Parliament and the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH Regulation) which requires updating the registration or substance safety data report, or another obligation under the REACH Regulation, the Purchaser shall bear all substantiated expenses. We assume no liability for any delays in delivery resulting from the notification of this use and from the fulfilment of the corresponding obligations under the REACH Regulation where such delays are beyond our control. The provisions contained in section 8 hereof shall not be affected. If, for reasons of health and safety or environmental protection, it is not possible to include this use as an identified use and if the Purchaser intends, contrary to our advice, to use the goods in a manner we have discouraged, we are entitled to withdraw from the contract.
The purchaser is not entitled to derive any rights against us from the above-mentioned arrangements.
Section 10 – Jurisdiction, Applicable Law, Severability
a) The place of jurisdiction shall be, at our option, the location of our head office or principal place of business of the Purchaser.
b) The laws of the Federal Republic of Germany apply in the same manner as for two parties with registered offices in Germany, excluding the UN Sales Convention as amended from time to time (United Nations Convention on Contracts for the International Sale of Goods [CISG] of April 11, 1980).
c) If any of the above provisions is or becomes ineffective, such ineffective provision shall be replaced by a provision which comes as close as possible to the original commercial purpose of the contract, taking reasonable account of the interests of both parties.