§ 1 General Provisions
1. All our deliveries, services and quotations are based on these terms and conditions, even if they are not expressly referred to in negotiations. Our sales and conditions apply to all contracts with enterprises, legal persons under public law or special assets under public law and also for all future business relations, even if they are not explicitly stipulated. They shall be regarded as accepted upon acceptance of our goods at the very latest.
2. Conditions to the contrary or such conditions of the buyer that deviate from our conditions apply only if we have expressly agreed to their validity in writing.
3. We shall also reserve the right of any technical and design changes to the supplied goods that are customary in trade, provided they do not compromise the buyer in an unreasonable way nor affect the fitness for purpose of the items purchased.
4. The claims of the buyer arising from the contractual relationship may not be assigned to third parties without our prior consent.
§ 2 Quotation
1. Our quotations are non-binding and subject to change without notice. Supply contracts are effective only when they have been confirmed in writing. Our written order confirmation shall be prevailing for the scope of the delivery. Revisions, supplements or oral agreements must likewise be confirmed in writing by us. The same applies to oral statements made by representatives or other persons. Any descriptions and technical details of the item(s) to be delivered are only approximate guidelines. This also applies to any documentation contained in printed material or other publications or attachments or enclosures to quotations and order confirmations like descriptions and drawings as well as information on dimension and weight, unless such information has explicitly been designated as binding.
2. Excess and short weights and customary delivery restrictions shall not give rise to the right to any complaints, objections or reductions by the orderer.
3. The orderer takes full responsibility for the documentation to be supplied by him like drawings, samples and the like.
4. Cost estimates, drawings and other documentation must not be made accessible to third parties. We explicitly reserve the copyright for any such documentation. We on our part are obliged to make any documentation designated by the buyer as confidential accessible to third party subject to his approval.
§ 3 Processing of Parts sent in
Parts sent in for processing have to be sent "free plant of supplier" and – as appropriate – in sound packaging with the packing slip enclosed. The supplier is to be sent a dispatch note stating the order number. The material of the parts sent in has to be specified; it must guarantee the best possible processing conditions. Pre-processed parts have to be delivered dimensionally accurate and within the specified tolerances. If these requirements have not been met, the supplier shall be able to invoice the costs for additional work as well as compensation for prematurely worn out or damaged tools or withdraw from the contract whereas the orderer will have to pay for the respective part of the contract price as well as aforementioned additional costs.
§ 4 Prices
1. Our prices are ex works including loading of goods, excluding packaging. The packaging is charged at cost price. The statutory value added tax effective on the day of invoicing will be added to the prices. The costs of a transportation or similar insurance possibly agreed have to be – unless otherwise agreed – paid by the orderer.
2. Should any changes of the base price arise on the delivery date, in case that is 4 months after contract completion (e. g. price increases for raw materials, basic materials, wage increases) we reserve the right to adjust prices accordingly following the notification of the orderer.
3. In case of partial deliveries each shipment may be invoiced separately.
4. Our prices valid on the day of delivery shall be applicable in the event that no prices have been agreed at the completion of contract. 5. Our prices are calculated in EURO in the absence of any specific notification.
§ 5 Payment Terms
1. Unless otherwise indicated in the order confirmation (alternatively the invoice) the price shall be due for payment net (without deduction) until the 30th day following the day of the delivery ex works or warehouse or the notice of completion.
2. If the orderer is in default of payment we shall be entitled to charge default interest at a rate of 8 % above the base interest rate. In this context we may prove and charge a higher interest loss at any time.
3. Non-compliance with the payment terms, default or circumstances that are of a nature likely to impair the orderer's credit worthiness will result in the immediate maturity of all our accounts receivable.
4. The orderer shall only be entitled to enforce any offset rights if his counter claims have been legally established, if they are undisputed or have been accepted by us.
5. The orderer may only exercise the right of retention to the extent that his counter claim is based on the same contractual relationship.
6. We are not obliged to accept any bills of exchange or cheques. Corresponding credit notes shall always apply subject to redemption (on account of payment, not in lieu of performance); they shall be provided with the value date of the day on which we can dispose of the countervalue. Bills shall be credited in consideration of any charges for discount, stamp duty and bank fees and, as the case may be, collection costs we have been charged with upon passing on the bill.
7. We reserve the right to enforce any further contractual or legal claims in the event of delayed payment.
§ 6 Delivery Time and Impediments to Deliveries
1. The delivery period shall commence from the time of the dispatch of the order confirmation neither before any documents, approvals and clearances to be furnished by the purchaser have been received nor before the receipt of any agreed down payment and the clarification of all technical issues.
2. The delivery period shall be deemed observed when the goods have left our premises before the end of the delivery period or if notification has been given to the effect that the goods concerned are ready for dispatch.
3. In the event of delivery default the buyer may, following the expiry of an appropriate grace period to no effect, withdraw from the contract; in the event of the practical impossibility of the supply of goods on our part he is also entitled to do so without grace period. Default in delivery shall be deemed equivalent to impossibility, if default in delivery persists for longer than 2 months. All other claims for damages (including any consequential damages) are excluded notwithstanding paragraph 4; the same shall apply in case of reimbursement of expenses.
4. The exclusion of liability regulated in paragraph 3 shall not apply insofar as an exclusion or limitation of liability is agreed upon for losses arising from injury to life, body or health as a result of an intentional or negligent breach of duty on our part or an intentional or negligent breach of duty on the part of a statutory representative or vicarious agent of ourselves; nor shall the exclusion of liability apply insofar as an exclusion or limitation of liability is agreed upon for other losses arising as a result of an intentional or grossly negligent breach of duty on our part or on the part of a statutory representative or vicarious agent of ourselves. To the extent we culpably violate an essential contractual obligation or a "cardinal duty", liability shall not be excluded but instead shall be limited to such foreseeable damage as is typical of the contract involved. In the event of reimbursement of expenses the above shall apply accordingly.
5. The limitations of liability in paragraphs 3 and 4 shall not apply if a fixed business has been agreed; the same shall apply if as a consequence of any delay in delivery that we are responsible for, the orderer is able to assert that his interest in the continued fulfillment of the contract has ceased.
6. Upon occurence of unforeseeable obstacles, which are beyond our control, and which we have been unable to avert despite the diligence reasonably to be expected in the circumstances of the case, regardless of whether such impediments occur at our business establishment or at that of any of our subsuppliers (including force majeure e.g. war and natural disasters, delays in the delivery of important raw materials) we have the right to withdraw from the delivery contract either in whole or in part or extend the delivery period by the duration of the impediment. We shall be entitled to the same rights in the event of strike or lockout at our business establishment or at that of any of our subsuppliers. We will immediately notify our customer of any such circumstance.
§ 7 Transfer of Risk
1. With an obligation to be performed at the debtor's place of business the risk is transferred to the orderer when the goods are handed over to the orderer. The same applies to any obligation to be performed at the debtor's place of business when a transport person is involved. In this case the risk is transferred when the goods are handed over to the transport person. In case of an obligation to be performed at the creditor's place of business, the risk is transferred upon departure from the premises.
2. If shipment is delayed due to circumstances that are beyond the control of the supplier, the risk is transferred to the orderer upon notification of readiness for dispatch. The same rules apply to partial shipments.
3. The buyer shall accept delivered goods even if there is evidence of minor faults regardless of his rights arising from § 6, para. 9 – 11. Partial deliveries are permitted in so far as reasonable for the orderer.
§ 8 Reservation of Title
1. We shall reserve the right of ownership on all goods delivered by us until such time as the orderer has paid all existing and future claims arising from the business relationship. The reservation of title shall also include spare or replacement parts even when they are mounted or installed since they will thereby not become essential component parts as defined in § 93 German Civil Code (BGB).
2. If the orderer acts in a way contrary to the contractual obligations, in particular in the event of a default of payment, we shall be entitled to take the merchandise back; the orderer hereby already agrees to such recovery in such an instance. Any repossession of goods does not imply our withdrawal from the contract in question, unless such withdrawal is explicitly declared by us. Any costs incurred by us as a result of the repossession of merchandise (particularly transportation costs) shall be borne by the orderer. Furthermore, we shall be entitled to prohibit any resale or processing of goods delivered under reservation of title and to revoke any direct debit authorization (§ 8 para. 5). The orderer may demand the delivery of goods recovered without any express notice of withdrawal only once the purchase price and all costs have been fully paid.
3. The orderer is obliged to handle the goods with care.
4. The orderer may neither pledge, nor transfer the delivery item by way of security and the account receivable generated by it. In the event of seizure or other third party interventions the orderer shall notify us without delay in writing as to enable us to file a lawsuit in pursuance of § 771 ZPO. Any residual costs arising from legal action despite our winning a case shall be covered by the orderer.
5. The orderer is entitled to resell, process, mix or blend the merchandise in the proper course of business, however, he will thus now assign to us all accounts receivable resulting from resale, processing, mixing, blending or other causes in law related to the purchased item (in particular from insurance contracts or unlawful acts) in the amount of the mutually agreed final invoice total (including VAT). The orderer shall continue to be entitled to collect such accounts receivable even after they have been assigned, however, this shall not affect our right to collect the accounts receivable ourselves. However, we agree not to recover debts ourselves as long as the orderer fulfills his payment obligations from the earned revenue, is not in default of payment and applications for the institution of insolvency proceedings have not been submitted and the orderer does not cease payment. If this is the case, though, the orderer must disclose the assigned accounts receivable and the names of the debtors on our request and shall provide all information required for collection of the debts along with the delivery of the relevant documentation and inform the debtor (third party) about the assignment. In the event of breach of contract by the orderer (default of payment in particular) we shall be entitled to revoke the orderer's authorization to collect payments.
6. Reservation of ownership shall also apply to the full value of any goods resulting from the processing, mixing and blending or combining of our goods, whereas these processes are performed on our part so that we are considered as manufacturer. If the ownership right of any third party remains in existence during the processing, mixing, blending or combination with their goods, we shall acquire ownership in proportion to the relevant objective value of these goods.
7. Securities owed to us will not be recorded insofar as the value of our securities exceeds the nominal value of the accounts receivable to be secured by 30 %.
8. The enforcement of the reservation of title in case of default of payment or exposure to loss or seizure of the consignment by us is to be considered as withdrawal from the contract. We shall not be required to schedule a deadline prior to the exercise of the right of withdrawal.
§ 9 Defects of Delivery
We shall be liable for defects in the purchased goods subject to the orderer's due compliance with the duties of inspection and complaint as set out in § 377 HGB (German Commercial Code) as follows:
1. Insofar as the purchased item does have a defect, we shall, as we see fit, be entitled to render subsequent fulfillment either by rectifying the defect or by supplying a new item, free of defects. (Supplementary performance). This is subject to the defect being material. Should either or both kinds of supplementary performance be impossible or disproportionate, we shall have the right to refuse performance. We may refuse supplementary performance if and as long as the buyer fails to fulfill his payment obligation towards us to the extent corresponding to the flawless part of the performance.
2. Should the supplementary performance indicated in paragraph 1 be impossible or fail, the buyer shall have the optional right to either reduce the purchase price accordingly or to withdraw from the contract in accordance with the statutory provisions; this shall apply especially in case of culpable delay or refusal of supplementary performance, likewise if the latter fails for the second time. Unless specified otherwise below (paragraph 4), any further claims on the part of the buyer, irrespective of the legal grounds on which they arise (in particular claims arising from violation of principal or secondary contractual obligations, reimbursement of expenses with the exception of those defined in § 439 paragraph 2 German Civil Code (BGB), tortious act as well as other tortious liability), shall be excluded; this applies in particular to claims resulting from losses beyond the item purchased including compensation claims for lost profit; also included are claims not arising from the faulty nature of the purchased item.
3. The above stipulations shall also apply in case of delivery of a different item or if the quantity falls short of the ordered quantity.
4. The exclusion of liability regulated in paragraph 2 shall not apply insofar as an exclusion or limitation of liability is agreed upon for losses arising from injury to life, body or health as a result of an intentional or negligent breach of duty on our part or an intentional or negligent breach of duty on the part of a statutory representative or vicarious agent of ourselves; nor shall the exclusion of liability apply insofar as an exclusion or limitation of liability is agreed upon for other losses arising as a result of an intentional or grossly negligent breach of duty on our part or on the part of a statutory representative or vicarious agent of ourselves. If we culpably infringe any essential contractual obligation or any "cardinal duty", liability shall not be excluded but shall be limited to the typical foreseeable contractual damage. Otherwise it shall be excluded pursuant to paragraph 2. Furthermore, the exclusion of liability shall not apply in cases in which the Product Liability Act stipulates that liability is in effect for defects in delivery items causing bodily harm or damage to property. Nor does it apply in case of the assumption of a guarantee and assurance of a characteristic feature if a defect covered precisely by such guarantee gives rise to our liability. In the event of reimbursement of expenses the above shall apply accordingly.
5. Claims for supplementary performance, damages and repayment of expenses will become time-barred within a year of delivery of the purchased item. Claims for price reduction and the exercise of the right of withdrawal shall be excluded insofar as the claims for supplementary performance have been time-barred. In case of sentence 2, however, the buyer may refuse to pay the purchase price to the extent that he would be entitled to do so due to a withdrawal or a reduction of the purchase price; in case of an exclusion of withdrawal and a subsequent refusal to pay we shall be entitled to withdraw from the contract.
6. Claims arising from manufacturer redress shall remain unaffected by this section.
§ 10 Liabilities for Secondary Obligations
If due to our fault the orderer cannot use the delivered object as stipulated in the contract due to missing or defective work based on suggestions or advice given prior to or after conclusion of contract or other secondary contractual obligations (particularly the instructions on how to process the delivered item) or if damages are caused thereby, the regulations laid out in §§ 9 and 11 shall apply accordingly, ruling out any further claims of the orderer.
§ 11 Withdrawal by Ordering Party and other Liability on our Part
1. The following provisions shall apply in the event of infringements over and above liability for defect and shall neither exclude nor restrict the statutory right of withdrawal. Likewise, any statutory or contractual claims due to us shall neither be excluded nor limited.
2. The orderer may withdraw from the contract if the overall performance has become definitely impossible; the same applies in case of inability. The orderer may also withdraw from the entire contract in the event of an order for similar items where the performance of part of the delivery becomes impossible in terms of numerical quantity on account of circumstances we are responsible for and if he has no interest in partial delivery; if this is not the case the orderer may abate consideration accordingly; the right of withdrawal shall not apply in the event of immaterial breach of duty.
3. If performance of contract is delayed and the orderer grants us an appropriate period to complete performance following the substantiation of default and should said period fail to be observed, the orderer shall be entitled to withdraw from the contract. In the event of partial delay in performance paragraph 1 and 2 shall apply accordingly. If prior to delivery the customer requests an alternative version of the delivery item differing in any respect, the delivery period shall be interrupted until the day an agreement is reached on the alternative version and will be extended by the time needed for actually implementing the changes, as the case may be.
4. Withdrawal from the contract shall be excluded if the buyer is solely or largely predominantly responsible for the circumstance that entitles him to withdraw from the contract or if the circumstance within our scope of responsibility arises during the period of the buyer's default in acceptance. In the event of impossibility, we shall, in the aforementioned cases retain our claim of consideration in accordance with § 326, paragraph 2 German Civil Code (BGB).
5. Further claims on the part of the buyer, irrespective of legal grounds (in particular claims arising from default at the point of contract conclusion, violation of main and secondary contractual obligations, reimbursement of expenses, unlawful acts and any other tortious liability) are excluded; this applies in particular to claims for losses beyond the delivery item itself as well as compensation claims for lost profit; also included are claims that do not result from the faulty nature of the purchased item. The above shall not apply if the cause of damage is due to the willful action or gross negligence of ourselves, our legal representatives, agents or servants. Nor shall this apply if the damage arises from culpable injury to life, body or health. To a similarly lesser degree, liability is excluded in the event of assumption of a guarantee if a breach of duty specifically covered thereby gives rise to our liability. Inasmuch as we culpably violate a material contractual obligation or "cardinal duty", liability shall not be excluded but shall be limited to the typical foreseeable contractual damage. Claims arising from assurances or guarantees can only be asserted by the orderer if his alleged claims are based on information on our part that has been explicitly referred to as assurances or guarantees on our part.
§ 12 Place of Performance, Place of Jurisdiction and Applicable Law
1. Place of performance shall be the place of dispatch (Factory or storage location)
2. Court of jurisdiction is Koblenz, provided that the buyer is a merchant. We shall have the right to file legal action against the orderer at any other permissible legal venue.
3. With regard to all claims and rights under this contract, the non-uniform law of the Federal Republic of Germany shall apply (German Civil Code, German Commercial Code) BGB, HGB. The UN Commercial Law shall be explicitly excluded.
§ 13 Other Regulations
1. All advice and statements given are the result of many years of laboratory work and hands-on experience and we are happy to share these with our customers within their own interest. However, since the execution of the work is beyond our control, we cannot assume any liability for damages caused by any work involving any of our compounds.
2. Any changes of the contract can only become effective subject to our approval.
3. If individual provisions contained in these terms and conditions become ineffective or void either in whole or in part, the remaining provisions will remain unaffected. Instead, contracting parties shall undertake to agree to a provision that largely attains the purpose and objective in commercial terms that the ineffective or void provision had aimed at.
4. In case of any doubt the terms and conditions in their original German version shall apply.