§ 1 Scope of application, form
(1) These General Sales Conditions (GSCs) shall form an integral part of the contract concluded with us. They shall apply to all our business relationships with our customers (hereinafter referred to as "Purchasers"). The GSCs shall only apply if the Purchaser is an entrepreneur (§ 14 BGB (German Civil Law)), a legal entity under public law or a separate property under public law.
(2) The GSCs shall particularly apply to contracts relating to the sale and/or delivery of movables (hereinafter referred to as "Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the GSCs shall also apply in the version valid at the time of the order being placed by the Purchaser (or in any case most recently communicated to him in text form) as the framework agreement for similar contracts in the future, without it being incumbent upon us to draw attention to it in each individual case.
(3) Our GSCs shall apply exclusively. We shall hereby object to any counter attestations, counter offers or other references on the part of the Purchaser to his General Terms and Conditions. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Purchaser shall only become part of the contract in so far as we have given our express consent to their application. This approval requirement shall also apply in the event that we perform the delivery to him without reservation while being aware of the General Terms and Conditions of the Purchaser.
(4) Individual agreements reached with the Purchaser in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GSCs.Subject to proof to the contrary, the contents of any such agreements shall be governed by a written contract or our written confirmation.
(5) Any legally-relevant declarations and notifications on the part of the Purchaser in relation to the contract (e.g. deadlines, notification of defects, withdrawal or reduction), shall be made in written or text form (e.g. letter, email, telefax). Formal legal requirements and other evidence – particularly in the case of doubt concerning the legitimacy of the declarant – shall remain unaffected.
(6) References to the validity of statutory provisions shall only be for the purpose of clarification.The statutory provisions shall thus also apply without such a clarification insofar as they are not directly amended or explicitly excluded in these GSCs.
§ 2 Conclusion of contract and content of the contract
Our offers are subject to change and are non-binding. This shall also apply if we have supplied the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions and records - including in electronic form, to which we reserve ownership rights and copyrights.
(2) The order for the goods placed by the Purchaser shall be deemed to be a binding offer. Unless otherwise stated in the order, we shall be entitled to accept this contract offer within 14 days following receipt by us.
(3) Acceptance shall either be declared in writing (e.g. by order confirmation) or by delivery of the Goods to the Purchaser.
(4) Verbal agreements made before contractual conclusion shall be deemed to be non-binding and shall be replaced by the written contract.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall either be agreed on an individual basis or specified by us on accepting the order. If this is not the case, the delivery period shall be approximately 2 weeks from conclusion of contract.
(2) Insofar as we are unable to meet binding delivery deadlines for reasons not due to any failing on our part (non-availability of performance), we shall immediately notify the Purchaser and inform him of the probable new delivery period. If performance remains unavailable within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse the Purchaser for any consideration already provided by him. The unavailability of performance in this sense shall particularly include the failure by our supplier to deliver in good time, if we have entered into a congruent covering transaction, no fault can be attributed either to us or our supplier, or we are not responsible for the procurement on a case-by-case basis.
(3) We shall not be liable in the case where fulfilling the obligation to deliver is impossible or delayed, if the impossibility or delay is based on the proper observance of obligations under public law in association with the European Chemicals Regulation REACH initiated by the Purchaser.
(4) Both the rights of the Purchaser in accordance with § 9 of these GSCs and our statutory rights – particularly in the case of exclusion of the performance obligation (say, due to impossibility or unreasonableness of performance and/or supplementary performance), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be ex warehouse and this shall also be the place of performance and any subsequent performance. Upon the request and at the costs of the Purchaser, the Goods shall be sent to another place of destination (purchase to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular, transport company, shipment route, packaging) ourselves.
(2) We shall be entitled to appropriate part deliveries, if the part delivery is usable for the Purchaser within the framework of the contractual stipulation of purpose, the delivery of the remaining ordered items is assured and the Purchaser does not incur any material additional expenditures or additional costs hereby – unless we declare our readiness to bear said costs.
(3) Our delivery obligation shall at all times be subject to the timely and orderly delivery by our own suppliers (reservation of self-supply).
(4) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Purchaser not later than the date, on which the Goods are received by the Purchaser. In the event of sale to destination, however, the risk of accidental loss and accidental deterioration of the Goods as well as risk of delay shall already be transferred when the Goods are handed to the carrier, forwarder or the person or organisation charged with shipment of the goods. If an acceptance procedure has been agreed on, then this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for services shall also apply analogously in other respects to an agreed acceptance.Acceptance shall be deemed to have been effected if the Purchaser is in default of acceptance.
(5) If the Purchaser is in default of acceptance or if he fails to perform an act of cooperation or if the delivery is delayed for other reasons, for which the Purchaser is responsible, then we shall be entitled to demand compensation for any loss thereby incurred – including any additional expenses (e.g. storage costs). For this purpose, we shall charge a flat rate compensation, commencing with the delivery period or – if there is no delivery period – with the notification of the shipment readiness of the Goods.
The proof of higher damages and our statutory claims (in particular, reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; the flat rate, however, shall be offset against further monetary claims. The Purchaser shall reserve the right to prove that we did not suffer any damages at all or only suffered substantially less damages than the aforementioned flat rate.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed on a case-by-case basis, our current prices valid at the time of the conclusion of the contract shall apply – namely, ex warehouse plus statutory sales tax.
(2) Our prices include standard packaging. The packaging included in the sales price shall not be accepted by us for return. § 7 of these GSCs shall apply to packaging provided on a loan basis.
(3) For purchase to destination (§ 4 Section 1 of these GSCs), the Purchaser shall bear the transport costs ex warehouse as well as the costs of any transport insurance desired by the Purchaser. Insofar as we do not charge the actual transport costs incurred in any individual case, a flat-rate transport charge (excluding transport insurance) shall be deemed to have been agreed upon. Any customs duties, charges, taxes and other official levies shall be borne by the Purchaser.
(4) The deduction of discounts shall require a special agreement in writing.
(5) The purchase price shall be due and payable within 30 days from the invoicing date and delivery (or acceptance) of the Goods. Notwithstanding this, however, within the scope of an on-going business relationship we shall be entitled to only provide delivery – either in whole or in part – in return for advance payment at any time. We shall declare any appropriate proviso no later than at the time of confirming the order.
(6) On expiry of the aforementioned payment period, the Purchaser shall be in default of payment. During default, the purchase price shall attract interest at the respective applicable statutory interest rate. We shall reserve the right to assert further damages due to default. Our claim to the commercial maturity interest (§ 353 HGB [German Commercial Code]) vis-à-vis businessmen shall remain unaffected.
(7) The Purchaser shall only have the right of lien and set-off to the extent that his claim has been legally determined or is undisputed. In the event of defects to the delivery, the counter-rights of the Purchaser – particularly in accordance with § 8 Section 9 Clause 2 of these GSCs shall remain unaffected.
(8) Should it become apparent after conclusion of the contract (e.g. by an application for the opening of insolvency proceedings), that our entitlement to the purchase price is at risk through insufficient ability of the Purchaser to pay, then in accordance with the provisions of law we shall be entitled to refuse performance and – if applicable after fixing a time limit – withdraw from the contract (§ 321 BGB).In the case of contracts for the manufacture of specific items (custom-made products), we may withdraw from the contract immediately. The statutory provisions relating to the dispensability of setting a deadline shall remain unaffected.
§ 6 Title retention
(1) We shall reserve proprietary rights to the sold Goods until full payment of our current and future claims arising from the purchase contract and an on-going business relationship (secured claims).
(2) The Goods subject to title retention shall neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The Purchaser shall notify us without delay in writing in the event that an application is made for opening insolvency proceedings, or insofar as third parties attempt to access (say, by distraint) the goods that are our property.
(3) The Purchaser shall treat the Goods carefully as well as adequately insure and – where required – maintain them.
(4) In the event of a breach of contract by the Purchaser – particularly by non-payment of the purchase price when due, we shall be entitled in accordance with the statutory provisions to withdraw from the contract and/or demand the return of the Goods on the grounds of title retention. The demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal. On the contrary, we shall be entitled to solely demand the return of the goods while reserving the right to withdraw from the contract. In the event that the Purchaser does not pay the purchase price due, we shall only be entitled to assert said rights after having previously set a reasonable grace period for the payment to be made, and such deadline has elapsed without payment being made, or where the setting of any such grace period is not required by law.
(5) Until notice of revocation, the Purchaser shall – in accordance with (c) below – be permitted to resell and further process the Goods under title of retention in the ordinary course of business. In this case, the following provisions shall additionally apply:
(a) The title retention shall extend to the resulting products, which are produced by the processing, mixing or combination of our goods at their full value, whereby we shall be deemed to be the manufacturer. If the ownership rights of third parties remain in existence during the processing, mixing or combination with their goods, we shall thereby acquire co-ownership in relation to the invoiced value of the Goods processed, mixed or combined to make the new product. Furthermore, the same shall apply to the resulting product as to the Goods delivered under title retention.
(b) The Purchaser shall hereby assign to us, by way of security, any and all claims resulting from the resale of the Goods or the products vis-à-vis third parties in full or to the extent of any co-ownership interest in accordance with the preceding paragraph. We herewith accept the assignment. The obligations of the Purchaser set forth in Section 2 shall also apply in relation to the assigned claims.
(c) In addition to ourselves, the Purchaser shall remain authorised to collect the claim assigned. We shall undertake not to collect the claim as long as the Purchaser complies with his payment obligations, he has not suspended payments, he is not deficient in his payment capacity (e.g. no application for the opening of insolvency proceedings – or a similar procedure – has been filed), and we do not assert title retention by the exercise of a right in accordance with Section 4. However, if this is indeed the case, we can request that the Purchaser informs us of the assigned claims and their debtors, provides us with all the information necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the authority of the Purchaser to further sell or process the Goods subject to title retention.
(d) If the realisable value of the collateral exceeds our claims by more than 10%, then we shall release collateral items of our choice – if so requested by the purchaser.
§ 7 Packaging provided on a loan basis
The Purchaser shall undertake to return to us any packaging provided on a loan basis (IBCs, barrels, stowage sacks, pallets, etc.) of the same type, quantity and value, as he has received for the purpose of delivery of the Goods. In this regard, the packaging shall be returned in clean condition in accordance with hygienic provisions. In the event that it is not possible for the Purchaser to return the packaging to us following delivery of the Goods, then he shall provide for the return transport of the packaging to the seller at his own expense without delay (discharge of obligation). In the event that the Purchaser falls into default in relation to the return of the packaging, then – after setting a reasonable grace period – we can refuse the return and demand pecuniary damages from the Purchaser.
§ 8 Claims by the Purchaser arising from defects
(1) In the case of defects of quality and title (including misdelivery and underdelivery), the statutory regulations shall apply to the rights of the Purchaser unless otherwise determined below. The special provisions on final delivery to a consumer (supplier recourse in accordance with §§ 478, 479 BGB) shall remain unaffected.
(2) The primary basis for our liability for defects shall be the agreement made concerning the quality of the Goods. All product descriptions, which are the subject matter of the individual contract or have been made publicly known by us (particularly in catalogues or on the homepage of our internet website) shall be applicable as the agreement relating to the condition of the Goods. Customary deviations shall be permissible.
(3) Guarantees regarding the quality (or condition) of our Goods shall be expressly declared as such in the order confirmation. With regard to the delivery of samples or specimens, their quality (or condition) shall not be guaranteed unless otherwise expressly specified in the order confirmation. The same shall apply mutatis mutandis to the results of analyses.
(4) Information and advice provided on our products are based on our experience to date. The values thereby specified – particularly including in relation to the scope of application of our Goods – shall merely be regarded as average values and shall not constitute any statement as to the quality (or condition) of the goods. We shall not assume any commitment to adhere precisely to said values and said scope of application.
(5) Identified uses under the European chemicals regulation REACH that are relevant to the goods shall represent neither an agreement on the corresponding contractual quality of the goods nor any designated use under the terms of this contract.
(6) In the absence of any agreed specification of the goods, the existence of defects therein shall be determined in accordance with statutory provisions (§ 434 Section 1, p. 2 and 3 BGB). We shall not, however, be liable for any public statements by the manufacturer or other third parties (e.g. advertising claims).
(7) Claims on the part of the Purchaser due to defects shall require that he has fulfilled his statutory duty to inspect the Goods and give notice of defects (§§ 377, 381 HGB). Should a defect become apparent at delivery, at said inspection or at any subsequent time, then this shall be reported to us in writing without delay. In any case, manifest defects shall be reported to us in writing within 5 working days following delivery, and defects not recognisable at the time of delivery inspection within five days following discovery. If the Purchaser fails to carry out the proper inspection and/or report of defects, our liability for the defect, which was not timely or properly reported, shall be excluded in accordance with the statutory provisions.
(8) If the item delivered is faulty, we can – as a first step – choose whether to provide subsequent performance by remedying the defect (subsequent improvement), or by delivery of a defect-free item (replacement delivery). Our right to refuse subsequent performance as laid down in the statutory requirements shall remain unaffected.
(9)We shall be entitled to make the subsequent performance owed conditional upon the Purchaser paying the purchase price due. Notwithstanding this, the Purchaser shall be entitled to withhold part of the purchase price that is appropriate to the defect.
(10) The Purchaser shall allow us the time and opportunity necessary for due subsequent performance. In particular, he shall hand over said Goods to us for inspection purposes. In the event of replacement delivery, the Purchaser shall return the defective item to us in accordance with the statutory regulations. In the event that we were not originally obliged to install the item, the subsequent performance shall not include either the disassembly of the defective item or its reassembly.
(11) If a defect does actually exist, we shall bear the costs required for the purpose of inspection and providing subsequent performance. These costs particularly include transport, travel, labour and material costs (not, however, disassembly and reassembly costs). Otherwise, we can demand from the Purchaser a reimbursement of the costs incurred resulting from the unjustified request for rectification of a defect (particularly inspection and transport costs), unless the lack of defectiveness was not discernible for the Purchaser.
(12) In urgent cases, say, if operational safety is at risk or to prevent disproportionate damage, the Purchaser shall be entitled to rectify the defect himself and claim reimbursement from us for the costs objectively required for this purpose. The Purchaser shall notify us of said self-remedy without delay – in advance, if at all possible. The Purchaser's right of self-remedy shall not apply if we were entitled to refuse the appropriate subsequent performance in accordance with the statutory provisions.
(13) If supplementary performance has failed or an appropriate deadline for supplementary performance set by the Purchaser has expired or is legally superfluous in accordance with the provisions of the law, the Purchaser shall be entitled to withdraw from the purchase contract or, alternatively, reduce the purchase price. The right of withdrawal shall not apply in relation to an insignificant defect.
(14) Claims by the Purchaser for damages or reimbursement of futile expenses shall only apply in accordance with § 9 of these GSCs and shall be incidentally excluded.
(15) Warranty obligations shall not apply if the cause of the defect is associated with the fact that the object purchased was not properly handled and that said handling resulted in the defect in question, or that the Purchaser did not comply with the instructions regarding the handling of the object purchased.
§ 9 Other liability
(1) Unless otherwise provided for in these GSCs – including the following provisions, we shall be liable for any breach of our contractual or non-contractual obligations in accordance with the relevant legal provisions.
(2) Within the framework of fault-based liability, we shall be liable for damages – irrespective of the legal reason – for intent and gross negligence.In relation to simple negligence, we shall only be liable – subject to a milder standard of liability in accordance with statutory provisions (say, for diligence in our own affairs) for
a) damages resulting from loss of life, personal injury or damage to health,
b) damages resulting from the not insignificant violation of an essential contractual obligation (an obligation, the proper fulfilment of which constitutes a condition sine qua non, and on the fulfilment of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the reimbursement of the foreseeable, typically occurring damages.
(3) The liability limitations arising from Clause 2 shall also apply in relation to dereliction of duty by or in favour of persons, whose dereliction of duty we are responsible for. Said limitations shall not apply insofar as we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the Goods or in relation to claims by the Purchaser in accordance with the German Product Liability Law.
(4) In the event of a dereliction of duty not attributable to a defect, the Purchaser shall only be entitled to withdraw from (or terminate) the contract, if we are responsible for the dereliction of duty. A free right of termination on the part of the Purchaser (particularly in accordance with §§ 651, 649 BGB) shall be excluded. In other respects, the statutory requirements and legal consequences shall be applicable.
§ 10 Assignment
The Purchaser shall not be entitled to assign his claims resulting from the contractual relationship to a third party. This shall not apply in the event of pecuniary claims.
§ 11 Time limitation
(1) Notwithstanding § 438 Section 1 Clause 3 BGB, the general period of limitation for claims due to defects of quality and title shall be one year from delivery. Insofar as acceptance has been agreed, the time limitation shall begin upon acceptance. Special statutory regulations in relation to time limitation shall remain unaffected (particularly § 438 Section 1 Clause 1, Section 1 Clause 2, Section 3 BGB, §§ 444, 479 BGB).
(2)The aforementioned limitation periods of commercial law shall also apply to contractual and extra-contractual claims for damages on the part of the Purchaser that are based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195 and 199 BGB) would result in a shorter limitation period in the individual case. Claims for damages by the Purchaser in accordance with § 9 Section 2 p. 1 and p. 2 (a) as well as in accordance with the German Product Liability Law, however, shall become time-barred solely in accordance with the statutory limitation periods.
§ 10 Governing law, place of jurisdiction
(1) The Laws of the Federal Republic of Germany shall be applicable for these GSCs and the contractual relationship between us and the Purchaser. International Sales Law shall be excluded. This shall expressly also apply to the use of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Purchaser is a businessman within the meaning of the German Commercial Code, a legal entity under public law or a separate property under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly as a result of this contract is our place of business in Bitterfeld-Wolfen. The same shall apply mutatis mutandis if the Purchaser is an entrepreneur within the meaning of § 14 BGB. However, we shall also be entitled to bring actions in the place of performance of the delivery obligation in accordance with these GSCs or an overriding individual agreement, or at the general place of jurisdiction of the Purchaser. Overriding statutory provisions – particularly in relation to exclusive jurisdictions, shall remain unaffected.
(3) The ineffectiveness of any individual provision set forth in these General Terms and Conditions shall not affect the effectiveness of the remaining provisions. Any ineffective provision shall be deemed to be replaced by those effective provisions, which come closest to the commercial purpose of the inapplicable provision. The same shall apply to any lacunae in this contract.
Chemiepark Bitterfeld-Wolfen OT Greppin
Farbenstraße, Areal B
06803 Bitterfeld-Wolfen (Germany)
Phone: +49 3493 7540-0
Fax: +49 3493 7540-4