Terms of Sale and Delivery

 

 

§ 1 Validity

 

a) These terms and conditions of sale and delivery apply to all - including future - business relationships with entrepreneurs within the meaning of § 14 BGB, legal entities under public law or special funds under public law for deliveries and other services, including work contracts and the delivery of non-justifiable items.

 

b) Our sales and delivery conditions apply exclusively. We object to other conditions - in particular the purchaser's conditions of purchase - now and in the future.

 

c) If different agreements are made with the buyer in a specific individual case, which should take precedence over these general terms and conditions of sale and delivery, this requires a contract or our express confirmation in text form.

 

§ 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 to the extent that we have confirmed them in text form or started to execute them. Verbal agreements, commitments and guarantees by our employees - with the exception of organs, authorized signatories and general representatives - in connection with the conclusion of the contract only become binding once we have confirmed them in text form. The waiver of this text form requirement also requires the text form.

 

b) Supplementary clauses on the description of goods such as "approximately", "as already delivered", "as usual" or similar additions in our offers relate exclusively to the quality or quantity of the goods, but not to the price. Such information in the buyer's orders will be understood by us accordingly.

 

c) Our quantities are approximate. In the case of delivery in demountable or permanently attached tanks as well as in silo vehicles, deviations of +/- 10% of the agreed quantity are considered to be in accordance with the contract - information about an approximate quantity entitles us to exceed or fall short accordingly. Such deviations in quantity reduce or increase the agreed purchase price accordingly.

 

§ 3 Purchase Price and Payment

 

a) Our prices do not include statutory value-added tax, packaging, plus customs duties for export deliveries, as well as fees and other public charges, in particular taking into account the respective place of delivery. They are calculated on the basis of the quantities or weights ascertained by us or our pre-suppliers, unless the recipient determines them using calibrated scales and the goods were transported at our risk; then its findings are decisive for the price calculation.

 

b) The purchase price is due net cash upon delivery of the goods, unless otherwise agreed in writing.

 

c) If the due date is exceeded, we can charge interest of 5 percentage points.

 

d) In the event of default, we will charge default interest of 9 percentage points above the base interest rate and an additional flat rate of EUR 40.00. We reserve the right to claim further damage.

 

e) Bills of exchange and checks are only accepted on account of performance and with a corresponding agreement. Customary bank charges for payment transactions are at the expense of the buyer.

 

f) The buyer is only entitled to the right of retention and set-off insofar as his counterclaims are undisputed or have been legally established, they are based on the same contractual relationship with us or would entitle him to refuse performance according to § 320 BGB.

 

g) If, after the conclusion of the contract, it becomes apparent that our payment claim is at risk due to the buyer's inability to pay, or if other circumstances arise that indicate a significant deterioration in the buyer's ability to pay, we can exercise the rights under Section 321 of the German Civil Code. This also applies if our obligation to perform is not yet due. In such cases, we can also call in all claims from the current business relationship with the buyer that are not statute-barred. The purchaser is also deemed to be unable to pay if the purchaser is at least three weeks in arrears with payment of a significant amount, as well as in the event of a significant reduction in the limit on our commercial credit insurance.

 

§ 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 delay in delivery, the limitation of liability in § 9 applies.

 

b) We are entitled to partial deliveries to a reasonable extent. We are also entitled to reasonably exceed or fall short of the agreed delivery quantities within the meaning of Section 2c.

 

c) In the case of deliveries that do not affect our operations (third-party business), the delivery date and deadline are met if the goods leave the delivery point in good time so that the delivery arrives at the recipient on time with the usual transport time.

 

d) We are not liable for the impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all

 

nature, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, epidemics affecting our supply chain, shortage of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures) that we are not responsible for have represented. If such events make the delivery or service significantly more difficult or impossible for us and the hindrance is not only of a temporary nature, we are entitled to withdraw from the contract. In the case of hindrances of a temporary duration, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the buyer cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by immediately informing us in text form.

 

e) We are not liable in the event of impossibility or delay in the fulfillment of delivery obligations if and to the extent that the impossibility or delay is due to circumstances caused by the buyer, in particular the fact that he has not fulfilled his public-law obligations, e.g. in connection with the European Regulation (EC) No. 1907/2006 (REACH regulation) or other mandatory legal obligations to submit an end-use certificate in the currently valid version.

 

f) Our delivery obligation is subject to correct and timely delivery to ourselves, unless the incorrect or late delivery is our fault.

 

§ 5 Dispatch and Acceptance

 

a) The delivery takes place in accordance with the commercial clause specified in the individual contract, for the interpretation of which the INCOTERMS in the version valid at the time of conclusion of the contract apply. Unless otherwise agreed, our deliveries are ex works (ex works). The risks of transport from the place of delivery are always at the expense of the buyer, even in the case of carriage paid deliveries or deliveries free domicile.

 

b) If the buyer picks up the goods at the delivery point, he or his representative must load the vehicle and observe the statutory regulations, in particular with regard to the transport of dangerous goods.

 

c) The buyer is always responsible for unloading and storing the goods.

 

d) In the case of deliveries in tank vehicles and demountable tanks, the buyer must ensure that his tanks or other storage containers are in perfect technical condition and arrange for the filling lines to be connected to his receiving system on his own responsibility and, if necessary, oblige the recipient accordingly. Our obligation is limited to the operation of the vehicle's own facilities.

 

e) Insofar as our employees assist with unloading or unloading in the cases of paragraphs b) to d) above, they act at the sole risk of the buyer and not as our vicarious agents. Standing and waiting times are at the expense of the buyer.

 

f) Storage costs after the transfer of risk and in the event of default of acceptance are borne by the buyer. After expiry of a reasonable period of time for acceptance set in vain for the buyer, we can dispose of the goods whose further use or resale is not possible, at the expense of the buyer if, at our reasonable discretion, storage of the goods is not feasible or is reasonable.

 

Section 6 Packaging

 

a) If we deliver in returnable packaging, the latter must be returned to us at the latest within 30 days of receipt by the buyer in an empty, flawless condition at his expense and risk, or

 

if necessary, returned free to our vehicle against confirmation of receipt. The conditions of the deposit money community of the chemical trade for reusable chemical packaging remain unaffected.

 

b) If the buyer does not comply with the obligation under a) in a timely manner, we are entitled to charge a reasonable fee for the period in excess of 30 days and, after unsuccessfully setting a deadline for return, to demand the replacement price, taking into account the aforementioned fee.

 

c) Labels attached to packaging may not be removed. Returned packaging may neither be exchanged nor refilled. The buyer bears the risk of depreciation, confusion and loss. The findings received in our company are decisive. The returnable packaging may not be used as a storage container or passed on to third parties unless this has been previously agreed in writing.

 

d) The buyer is responsible for emptying tank wagons immediately and sending them back to us or the specified address in proper condition. If he is in default with the return, the costs of the tank wagon caused by the delay shall 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 (reserved goods) until all claims have been settled, in particular the respective balance claims to which we are entitled within the framework of the business relationship (balance reservation). This also applies if payments are made on specially designated claims. The balance reservation finally expires with the settlement of all outstanding claims 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 Code, the simple retention of title in accordance with sentence 1 applies; the balance retention does not then apply.

 

b) As long as the buyer duly fulfills his obligations towards us, he is entitled to further use the goods subject to retention of title in the normal course of business, provided that his claims from the resale in accordance with e) are transferred to us.

 

c) If the buyer does not meet his payment obligations even after setting a grace period, we are entitled to demand the return of the reserved goods without setting a further grace period and without a declaration of withdrawal. We may be entitled to enter the buyer's premises for the purpose of taking them back.

 

d) Any treatment or processing of the reserved goods takes place for us without any obligation on our part. We are regarded as the 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 value of third-party goods; the buyer keeps them in trust for us and free of charge. The same applies to connection or mixing within the meaning of §§ 947, 948 BGB of reserved goods with third-party goods.

 

e) The buyer hereby assigns to us the claims against third parties arising from the resale of the reserved goods to secure all our claims. If the buyer sells goods which we are interested in pursuant to letter

 

d) have proportionate ownership, he assigns to us the claims against third parties for the corresponding partial amount. If the buyer uses the goods subject to retention of title as part 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 claims from further use of the reserved goods. If we become aware of facts that indicate a significant deterioration in the buyer's financial situation, the buyer must, at our request, inform his customers of the assignment, refrain from any disposal of the claims, provide us with all necessary information about the inventory of the goods owned by us and to hand over the claims assigned to us and to hand over the documents for asserting the assigned claims. Access by third parties to the reserved goods and the assigned claims must be reported to us immediately.

 

g) If the value of the securities to which we are entitled exceeds the total claim against the buyer by more than 50%, we are obliged to release securities of our choice at the buyer's request.

 

§ 8 Liability for Material Defects

 

a) The owed internal and external properties of the goods are determined according to the agreed specifications, if there are no such according to our product descriptions, labels and specifications, if there are no 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 material, declarations of conformity, certificates of analysis, test certificates or similar declarations are not assurances or guarantees. In particular, relevant identified uses according to the REACH Regulation (EC) No. 1907/2006 represent neither an agreement of a corresponding contractual quality nor 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 on our part and does not release the buyer from checking the delivered goods for their suitability for the intended processes and purposes.

 

c) The statutory provisions such as Section 377 of the German Commercial Code (HGB) apply to examining the goods and reporting defects, with the proviso that the buyer must notify us of any defects in the goods in text form. If the goods are delivered in packages, he must also check the labeling of each individual package to ensure that they match the order. In addition, prior to unloading, he must convince himself of the contractual quality of the goods by taking samples in accordance with customary commercial practice.

 

d) In the case of justified, timely notification of defects, we can choose to remedy the defect or deliver goods free of defects (subsequent performance). In the event of failure or refusal of supplementary performance, the buyer is entitled to the statutory rights. If the defect is not significant and/or the goods have already been sold, processed or redesigned, he is only entitled to the right of reduction.

 

e) Further claims, in particular consequential damages, are excluded in accordance with § 9.

 

§ 9 General Limitation of Liability and Statute of Limitations

 

a) We are only liable for violations of contractual and non-contractual obligations, in particular for impossibility, delay, culpa in contrahendo and tort – including for our executive employees and other vicarious agents – in cases of intent and gross negligence. Insofar as there is no intent, our liability for damages is limited to the damage that is typical for the contract and foreseeable at the time the contract was concluded. Apart from that, our liability is also excluded 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 and the goods to be free of defects that impair their functionality or usability more than insignificantly, as well as advice, protection and care obligations that aim to protect the buyer or his staff from significant damage. Furthermore, the limitations do not apply in cases of mandatory liability, e.g. under the Product Liability Act, in the event of injury to life, limb or health, and also not if and to the extent that we have fraudulently concealed defects in the item or have guaranteed their absence. The rules on the burden of proof remain unaffected. The buyer's right of recourse according to §§ 478, 479 BGB remain unaffected in any case.

 

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 damages instead of performance in accordance with this § 9 remains unaffected.

 

d) The limitations under § 4d) and § 4e) apply to liability in the event of impossibility of delivery or delays in delivery.

 

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 shall become statute-barred one year after delivery of the goods. This does not affect the statutory limitation period due to our liability for intentional and grossly negligent breaches of duty, culpably caused damage to life, limb and health as well as mandatory liability, e.g. under the Product Liability Act.

 

§ 10 REACH

 

If the buyer notifies us of a use according to Article 37(2) of Regulation (EC) No. 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH Regulation), which requires an update of the registration or the chemical safety report is required or which triggers another obligation under the REACH regulation, the buyer bears all verifiable expenses. We are not liable for delays in delivery caused by the disclosure of this use and our compliance with the relevant obligations under the REACH Regulation. If, for reasons of health or environmental protection, it is not possible to include this use as an identified use and if, contrary to our advice, the buyer intends to use the goods in a way that we have advised against, we can withdraw from the contract. The buyer cannot derive any rights against us from the above rules.

 

§ 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 registered office of our head office. However, we can also sue the buyer at his registered office. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation.

 

b) The law of the Federal Republic of Germany shall apply to the exclusion of the UN sales law in the applicable version (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 shall be replaced by such provisions which come as close as possible to the economic purpose of the contract while adequately safeguarding the interests of both parties.