Terms and Conditions
The General Terms and Conditions of Sale set forth below apply to all deliveries and services provided by us. Different terms and conditions of the buyer are not binding for us.
The acceptance of deliveries and services shall be deemed an acknowledgement of our terms and conditions.
2. Quotations, orders
Prices, quantities, delivery times and availability specified in our quotations are not binding. Orders by the buyer shall only be binding for us when they are confirmed in writing or executed by us. Verbal collateral agreements must be set down in writing.
3. Calculation, set-off
The buyer can only set off claims against claims by us or assert a right of retention if the counter-claim is undisputed or recognised by declaratory judgment or there is reasonable doubt concerning the solvency of the contracting partner.
Our prices exclude VAT and any export tax. If costs related to a purchase order change materially after the contract is concluded, the contracting partners shall be obliged to agree on an adjustment of the prices. The calculation shall be based on weights, numbers of items, and quantities determined by us unless the buyer raises an objection immediately.
5. Delivery, shipment
We do not deliver end products or finished products but primarily intermediate products etc. All details and information concerning suitability and application are therefore not binding. This also applies with regard to any third-party property rights of which we are not aware. The buyer must on its own responsibility check the suitability of our products for the buyer’s intended processes and purposes.
Certain deviations cannot be avoided in manufacturing goods and determining values. Specifications concerning percentages or mixing ratios of our goods must therefore only be regarded as approximate mean values. The buyer is responsible for compliance with legal and official regulations for the use of our products. We can at our option also supply goods of an identical quality which we have purchased from a third party.
Partial deliveries are admissible. We shall endeavour at all times to delivery as quickly as possible but cannot be bound to a fixed delivery time. All details concerning delivery times shall only be deemed to be approximate.
All goods are shipped at the buyer’s risk unless otherwise expressly agreed, irrespective of which party bears the freight charges. We shall choose the route and mode of shipment. The Incoterms as amended shall apply to the interpretation of customary clauses such as fob, cfr, cif etc.
Packaging loaned by us in the form of drums or receptacles (containers) shall remain our property. Once emptied, they must be cleaned immediately and returned to our ex-works departure point, Am Selder 25, 47906 Kempen, free of charge. If packaging has not been returned to our works six months after delivery, the buyer must pay the original price for the respective container.
6. Force majeure
War, unforeseeable interruption of operations of any kind through no fault of our own, delays, orders of higher authority, and other cases of force majeure, strikes and lock-outs, shortages of raw materials, energies and manpower which reduce or prevent production or shipment or render it unreasonable, shall release us from our obligation to deliver for the duration and extent of the obstruction. If delivery is delayed as a result of the obstruction for longer than four weeks, we shall be entitled to rescind the contract without the buyer having the right to claim damages. The buyer can rescind the contract if full performance finally becomes impossible for us before passing of the risk.
In the event of default in payment and reasonable doubt concerning the buyer’s solvency or credit-worthiness, we shall be entitled – irrespective of the buyer’s other rights – to require payment in advance for deliveries not yet performed and to call in all claims arising from the business relationship for immediate payment. If the buyer fails to comply with its obligation, we shall be entitled to rescind the contract – or in accordance with § 326 BGB [German Civil Code] – require damages for non-fulfilment. Our obligation to deliver shall be suspended for as long as the buyer is in default with any due payment. In case of default, interest can be charged of 5% above the respective base rate of the German Central Bank or interest at the rate customary in the buyer’s country. Cheques and bills of exchange shall only be accepted on account of performance and in agreement with ourselves. Discount charges and other bill charges shall be borne by the buyer. Credits for bills of exchange or cheques shall always be subject to receipt of the proceeds from these papers and at the value on the date on which the proceeds are at our disposal. In the field of exports, costs connected with payments shall be borne by the buyer if incurred outside the Federal Republic of Germany.
8. Complaints, warranty
Complaints concerning quality or quantity must be made in writing at least 14 days after the goods are received, hidden defects at the latest 7 days after they are discovered, stating the invoice number and delivery note, and batch number of the container. The buyer must check – if necessary by trial processing – whether the goods supplied are suitable for their intended purpose. Where complaints are justified and correct, we shall be entitled to deliver a replacement. The buyer may only require rescission or reduction if the replacement is not delivered within a reasonable time limit or is again defective. Goods that are the subject of complaint may only be returned with our express agreement.
Claims by the buyer for damages and reimbursement of expenses for whatever legal reason, especially due to breach of duty from the obligation and tort are excluded. This shall not affect cases of compulsory liability under the Produkthaftungsgesetz [German Product Liability Act] for injury to life, limb and health, and cases of damage caused wilfully or by negligence.
In the event of a breach of material contractual obligations, damage claims are limited to foreseeable damage, typical for the contract, unless one of the foregoing causes of liability exists.
Liability for consequential harm caused by a defect due to breach of duty is excluded unless the breach of duty is supposed to protect specifically against such consequential harm. This shall not affect claims for reimbursement of expenses according to §439 (2) BGB. A change in the burden of proof to the detriment of the buyer is not connected with the foregoing stipulations.
>Exclusion of liability also applies to the personal liability of salaried employees, workers, employees, representatives and vicarious agents.
The foregoing terms and conditions shall not affect any claims by the buyer under a guarantee within the meaning of § 443 BGB.
Claims based on defects with respect to the products supplied shall become statute-barred after one year.
10. Retention of title
We shall retain title to the goods until the buyer has settled all its liabilities arising from current and future business relations with ourselves.
When the customer processes the goods supplied, we shall be deemed the manufacturer and acquire ownership of the newly created goods. If the goods are processed together with other materials, we shall acquire co-ownership in the ratio of the invoice value of the goods supplied to the invoice value of the other materials.
If, when the goods supplied are combined or mixed with an object of the buyer, this is deemed to be the main object, co-ownership of the object shall pass to us in the ratio of the invoice value of the goods supplied to the invoice value or – in the absence of such – market value of the main object. The buyer shall be deemed in such cases to be the custodian. The buyer is obliged to keep the goods subject to retention of title in safe custody, and to ensure at its own expense that they are not lost or damaged. The buyer herewith in advance assigns its claims thereby under the insurance contracts.
The buyer is entitled to dispose of goods which we own in the ordinary course of business as long as the buyer performs its obligations under the business relationship with us in due time.
The buyer herewith already assigns to us all claims from the sale of goods subject to our rights of ownership by way of security, and to the extent of the respective percentage of ownership in the goods sold. If the buyer combines or mixes the goods supplied with a main object of a third party against payment, the buyer herewith already assigns to us its claims for remuneration against the third party up to the amount of the invoice value of the goods supplied by way of security. The buyer is obliged at our request to notify its customers of the assignment and to give the seller the information and documentation which the seller requires to assert its rights against the customers.
In the event of the buyer’s default in payment, we shall be entitled, also without exercising our right of rescission and without setting a period of grace, to require at the buyer’s expense the interim return of the goods it owns.
If the value of the securities to which we are entitled exceeds our claims to be secured against the buyer by more than 10%, we shall be obliged at the buyer’s request in this respect to release securities at the buyer’s discretion.
11. Final provisions
The buyer may not assign its claims and rights against us to third parties without our express written consent.
If any of these terms and conditions are or become legally invalid, this shall not affect the validity of the remaining terms and conditions.
12. Place of performance
Place of performance for deliveries and payments and legal venue is exclusively the registered office of our company. We are, however, entitled instead to bring an action before a court of law that is competent for the buyer’s registered office. The contract is governed by the law of the Federal Republic of Germany as applicable among businessmen with a registered office in the Federal Republic of Germany.
Kempen, April 2008