General Terms and Conditions
- a) These general terms and conditions apply to all – including future – business relationships with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law regarding deliveries and other services, including work contracts and the delivery of unjustifiable items.
- b) Our terms of sale and delivery apply exclusively. We contradict other conditions – especially the buyer’s purchasing conditions – now and for the future.
- c) If different agreements are to be made with the buyer in a specific individual case that should take precedence over these general terms and conditions of sale and delivery, this requires a contract or our express confirmation in writing.
2 Offer and acceptance
- a) Our offers are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders are only binding for us if and insofar as we have confirmed them in text form or have started to execute them. Verbal agreements, promises and guarantees from our employees – with the exception of organs, authorized officers and general representatives – in connection with the conclusion of the contract only become binding upon our confirmation in text form. The waiver of this text form requirement also requires the text form.
- b) Supplementary clauses for the description of goods such as “approximately”, “as already delivered”, “as before” or similar additions in our offers refer exclusively to the quality or quantity of the goods, but not to the price. Such information in orders of the buyer are understood by us accordingly.
- c) Our quantities are approximate. In the event of delivery in surface-mounted or permanently connected tanks as well as in silo vehicles, deviations of +/- 10% of the agreed quantity are deemed to be in accordance with the contract – details of an approximate quantity entitle us to exceed or fall short. Such deviations in quantity reduce or increase the agreed purchase price accordingly.
3 purchase price and payment
- a) Our prices are exclusive of VAT, packaging, for export deliveries plus customs, fees and other public charges, taking into account the respective delivery location. They are calculated based on the quantities or weights determined by us or our upstream suppliers, unless the recipient determines them using calibrated scales and the goods were transported at our risk; then its determinations are decisive for the price calculation.
- b) The purchase price is due net cash on delivery of the goods, unless otherwise agreed in text form.
- c) If the due date is exceeded, we can charge interest of 5 percentage points.
- d) In the event of default, we charge default interest at a rate of 9 percentage points above the base rate and an additional flat rate of EUR 40.00. We reserve the right to claim further damages.
- e) Bills of exchange and checks are only accepted on account of performance and with the corresponding agreement. Customary bank charges for payment transactions are borne by the buyer.
- f) The buyer has the right to withhold and offset only to the extent that his counterclaims are undisputed or have been legally established, are based on the same contractual relationship with us or would entitle him to refuse his performance in accordance with § 320 BGB.
- g) If it becomes apparent after the conclusion of the contract that our payment claim is endangered by the inability of the buyer to perform properly or if other circumstances arise that indicate that the performance has deteriorated significantly, we can exercise the rights under Section 321 of the German Civil Code (BGB). This also applies if our obligation to perform is not yet due. In such cases we can also call all claims from the current business relationship with the buyer that are not time-barred. The buyer is also deemed to be ineffective if the buyer is in default of payment for at least three weeks with a significant amount, and also if the limit for our commercial credit insurance is significantly downgraded.
4 Delivery, delay and impossibility
- a) The agreed delivery times and dates are always approximate, unless a fixed date has been expressly agreed as such in text form. In the event of our delivery being delayed, the limitation of liability in § 9 applies.
- b) We are entitled to make partial deliveries to a reasonable extent. We are also entitled to appropriately exceed and fall below the agreed delivery quantities within the meaning of § 2c.
- c) For deliveries that do not affect our company (drop shipments), the delivery date and deadline are met if the goods leave the delivery point in time so that the delivery arrives at the recipient in good time during the usual transport time.
- d) We are not liable for the impossibility of delivery or for delivery delays, insofar as these are due to force majeure or other unforeseeable events at the time the contract was concluded (eg operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, ours epidemics affecting the supply chain, lack of manpower, energy or raw materials, difficulties in obtaining the necessary official permits, official measures) which we are not responsible for. If such events make delivery or performance significantly more difficult or impossible and the hindrance is not only of a temporary nature, we are entitled to withdraw from the contract.In the event of temporary obstacles, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the disability plus a reasonable start-up period. Insofar as the buyer cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by giving us an immediate declaration in text form.
- e) We are not liable for the impossibility or delay in fulfilling delivery obligations if and insofar as the impossibility or delay is based on circumstances prompted by the buyer, in particular based on the fact that he has fulfilled his public law obligations, for example in connection with European Regulation (EC) No. 1907/2006 (REACH regulation) or other legally binding obligations to submit an end use declaration in the currently valid version.
- f) Our delivery obligation is subject to correct and timely delivery, unless we are responsible for the incorrect or late delivery.
- 5 Dispatch and acceptance
- a) The delivery takes place in accordance with the trade clause stipulated in the individual contract, for the interpretation of which the INCOTERMS apply in the version valid at the time the contract is concluded. Unless otherwise agreed, our deliveries are ex works (ex works). The dangers of transport from the delivery point are always borne by the buyer, even in the case of freight-free deliveries or deliveries free of charge.
- b) If the buyer picks up the goods at the delivery point, he or his agent must load the vehicle and observe the legal regulations, in particular regarding the transport of dangerous goods.
- c) The buyer is responsible for unloading and storing the goods.
- d) In the case of deliveries in tankers and tanks, the buyer must ensure that the tanks or other storage containers are in perfect technical condition and have the filling lines connected to his intake system under his own responsibility and, if necessary, oblige the recipient accordingly. Our obligation is limited to operating the vehicle’s own facilities.
- e) Insofar as our employees help with unloading or refueling in the cases of paragraphs b) to d) above, they act at the sole risk of the buyer and not as our vicarious agents. Costs from standing and waiting times are borne by the buyer.
- f) Storage costs after transfer of risk and in the event of default in acceptance are borne by the buyer. After the expiry of a reasonable period of time, which the buyer has unsuccessfully set for acceptance, we can dispose of the goods, the further use or resale of which is not possible, at the expense of the buyer, unless, at our reasonable discretion , storage of the goods is not feasible due to their nature or nature or is reasonable.
- a) If we deliver in rental packaging, these must be returned to us in an empty, perfect condition within 30 days of their arrival at the buyer’s expense and risk, or returned to our vehicle free of charge against confirmation of receipt. The conditions of the pledge money community of the chemical trade for reusable chemical packaging remain unaffected.
- b) If the buyer does not meet the obligation mentioned under a) within the time limit, we are entitled to charge a reasonable fee for the period beyond 30 days and to demand the replacement price after returning the unsuccessful deadline, taking the aforementioned fee into account.
- c) Labels attached to packaging must not be removed. Rental packaging must not be mixed up or refilled. The buyer bears the risk of impairment, exchange and loss. The decisive factor is the initial findings in our company. The use of the rental packaging as a storage container or its forwarding to third parties is not permitted unless this has been previously agreed in text form.
- d) The purchaser is responsible for emptying tank wagons immediately and returning them to us or the specified address in proper condition. If he is in arrears with the return, the costs of the tank car due to the delay will be borne by him.
7 Retention of title
- a) Ownership of the goods (reserved goods) is only transferred to the buyer once the purchase price has been paid in full. All delivered goods remain our property (goods subject to retention of title) until all claims have been fulfilled, in particular also the respective balance claims that we are entitled to within the framework of the business relationship (balance reservation). This also applies if payments are made on specially designated claims. The balance reservation expires definitely with the settlement of all outstanding debts at the time of payment and covered by this balance reservation. In the case of prepayment or cash transactions within the meaning of Section 142 of the Insolvency Act, only the simple retention of title in accordance with sentence 1 applies;
- b) As long as the buyer fulfills his obligations towards us properly, he is authorized to continue using the reserved goods in the normal course of business on the condition that his claims from the resale according to e) pass to us.
- c) If the buyer does not meet his payment obligations even after setting a grace period, we are entitled to demand the goods subject to retention of title without setting a grace period and without a declaration of withdrawal. For the purpose of taking back, we may be entitled to enter the buyer’s business.
- d) Processing or processing of the goods subject to retention of title takes place for us without binding us. We are considered a manufacturer within the meaning of § 950 BGB and acquire ownership of the intermediate and end products in the ratio of the invoice value of our reserved goods to the invoice values of third-party goods; the buyer will keep them in trust for us and free of charge. The same applies to the connection or mixing within the meaning of §§ 947, 948 BGB of reserved goods with third-party goods.
- e) The buyer hereby assigns the claims against third parties arising from the resale of the reserved goods to us to secure all our claims. If the buyer sells goods in which we have proportional ownership in accordance with letter d), he assigns the claims against the third party to us at the corresponding partial amount. If the buyer uses the reserved goods in the context of a work or similar contract, he assigns the corresponding claim to us.
- f) In the ordinary course of business, the buyer is authorized to collect the claims from the continued use of the reserved goods. If we become aware of facts that indicate a significant deterioration in the assets of the buyer, the buyer must inform our customers of the assignment at our request, to refrain from any disposal of the claims, to provide us with all the necessary information about the inventory of the goods in our property and to give the claims assigned to us and to hand over the documents for the assertion of the assigned claims. Any access by third parties to the reserved goods and the assigned claims must be reported to us immediately.
- g) If the value of the security to which we are entitled exceeds the total claim against the buyer by more than 50%, we are obliged to release the security of our choice upon request of the buyer.
8 Liability for material defects
- a) The internal and external properties of the goods owed are determined by the agreed specifications, in the absence of such according to our product descriptions, labels and specifications, and in the absence of such according to practice and commercial usage. References to standards and similar regulations, information in safety data sheets, information on the usability of the goods and statements in advertising materials, declarations of conformity, certificates of analysis, test certificates or similar declarations are not assurances or guarantees. In particular, relevantly identified uses in accordance with REACH Regulation (EC) No. 1907/2006 do not constitute an agreement of a corresponding contractual nature or a use required by the contract.
- b) If we advise the buyer verbally, in writing or through tests, this is done to the best of our knowledge, but without liability for us, and does not release the buyer from his own examination of the delivered goods for their suitability for the intended processes and purposes.
- c) For the inspection of the goods and notification of defects, the legal regulations such as § 377 HGB apply, with the proviso that the buyer must notify us of defects in the text in text form. If the goods are delivered in packages, he must also check the labeling of each individual package for consistency with the order. In addition, he has to convince himself of the condition of the goods in accordance with the contract by taking samples in accordance with customary practice.
- d) In the event of justified, timely notice of defects, we can choose to remedy the defect or deliver goods free of defects (supplementary performance). If the supplementary performance fails or is refused, the buyer has the legal rights. If the defect is not significant and / or if the goods have already been sold, processed or redesigned, he is only entitled to a reduction right.
- e) Further claims, in particular consequential damages, are excluded in accordance with § 9.
9 General limitation of liability and limitation
- a) Due to violation of contractual and non-contractual obligations, in particular due to impossibility, delay, fault in the initiation of a contract and tort, we are only liable – also for our managers and other vicarious agents – in cases of intent and big negligence. Unless there is an intention, our liability for damages is limited to the foreseeable damage typical for the contract at the time the contract was concluded. For the rest, our liability is excluded, also for consequential damages and lost profits.
- b) The restrictions from § 9a) do not apply in the case of intent or culpable violation of essential contractual obligations. Essential to the contract are the obligation to deliver on time as well as the freedom of the goods from defects which impair their functionality or usability more than insignificantly, and also obligations to advise, protect and care, which are intended to protect the buyer or his staff from significant damage. Furthermore, the restrictions do not apply in cases of mandatory liability, eg under the Product Liability Act, in the event of injury to life, limb or health, and also not if and insofar as we have fraudulently concealed defects in the item or have guaranteed their absence. The rules on the burden of proof remain unaffected.Rights of recourse of the buyer according to §§ 478,
- c) If we are in default with a delivery or other service, the buyer can demand compensation for the damage caused by the delay in addition to the service; in the case of slight negligence, however, limited to a maximum of 10% of the agreed price for the delayed service. The buyer’s right to compensation instead of performance in accordance with this § 9 remains unaffected.
- d) The liability in the event of impossibility of delivery or delivery delays are subject to the restrictions in § 4d) and § 4e).
- e) Unless otherwise agreed, contractual claims that the buyer has against us on the occasion of and in connection with the delivery of the goods and our other services expire one year after delivery of the goods. This does not affect the statutory limitation period due to our liability from willful and grossly negligent breaches of duty, culpably caused damage to life, limb and health, as well as mandatory liability, for example under the Product Liability Act.
The buyer gives us a use according to Article 37 (2) of Regulation (EC) No. 1907/2006 of the European Parliament and of the Council Registration, evaluation, authorization and restriction of chemical substances (REACH regulation) known to update the registration or the chemical safety report is necessary or which triggers another obligation under the REACH regulation, the buyer bears all demonstrable expenses. We are not liable for delivery delays caused by the announcement of this use and the fulfillment of the corresponding obligations under the REACH regulation arise from us. Should it be for health or environmental reasons not be able to include this use as identified use and should the buyer, contrary to our advice, intend to use the goods in the manner that we have advised against, we can withdraw from the contract. From the above rules, the buyer canderive no rights against us.
11 Place of jurisdiction, applicable law, severability clause
- a) The exclusive place of jurisdiction for all disputes arising from the business relationship between us and the buyer is the seat of our main branch. We can also see the buyer at his seat. Mandatory statutory provisions on exclusive jurisdictions remain unaffected by this regulation.
- b) The law of the Federal Republic of Germany applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods, as amended (United Nations Convention on Contracts for the International Sale of Goods CISG of April 11, 1980) .
- c) Should any of the above clauses be or become ineffective, the ineffective conditions should be replaced by regulations that come as close as possible to the economic purpose of the contract, with due respect for mutual interests.
As of 07/2020