1. Scope of Application
Our contracts are exclusively governed by the terms and conditions stated in our
sales confirmations and by our following General Sales Conditions. We herewith
explicitly object to deviating or conflicting General Purchase Conditions of our Buyer,
unless otherwise explicitly agreed in writing.
2. Offer and Acceptance
Our offers are non-binding. Orders from our Buyer shall not be binding
on us until the
earlier of our sales confirmation or our delivery.
3. Prices and Payment
3.1. The purchase price is payable without any deduction by the due date.
3.2. In the
event of delayed payment, the Buyer shall pay interest from the date of maturity
to definite receipt of payment at a rate of 9 percentage points above the basic interest
rate announced by Deutsche Bundesbank if the amount is invoiced in euros, or, if
invoiced in any other currency, at a rate of 9 percentage points above the discount
rate of the central bank of the country of the invoiced currency at the time the
payment is due.
3.3. In the event of any reasonable doubts concerning the Buyer’s ability to pay and
particularly if a default in payment has already occurred, we shall be entitled – without
prejudice to any other rights – to revoke any credit terms granted and to demand
payment in advance or sufficient collateral.
3.4. Set-off or retention with counterclaims other
than those that are not disputed by us or
are confirmed by final court decision shall be excluded.
3.5. Regardless of the place of delivery
of goods or documents, the place of payment shall
be our place of business.
4. Delivery
4.1. Delivery shall be effected as agreed in the
contract. General Commercial Terms shall
be interpreted in accordance with the Incoterms in force on the date the contract is
concluded.
4.2. In the event of delayed delivery on our part, the Buyer shall be obliged to grant
a
reasonable period of grace.
5. Product Quality
5.1. Unless otherwise agreed explicitly in
writing, the quality of the goods is exclusively
determined by our product specifications.
5.2. Identified uses under the European Chemicals
Regulation REACH relevant for the
goods shall neither represent an agreement on the corresponding contractual quality
of the goods nor the designated use under this contract.
5.3. The properties of specimens and
samples are binding only insofar as they have been
explicitly agreed in writing to define the quality of the goods.
5.4. Quality and shelf-life data
as well as other data shall constitute a guarantee only if
explicitly agreed and designated as such in writing.
6. Advice
6.1. Any advice rendered by
us is given to the best of our knowledge. Any advice and
information with respect to suitability and application of the goods shall not relieve the
Buyer from analysing and testing the goods.
6.2. Technical and chemical specifications are no
warranty or guarantee for a particular
suitability or application of the goods.
7. Retention of title
7.1. Simple retention of
title: Title to the goods delivered shall not pass to the Buyer before
the purchase price has been paid in full.
7.2. Right of access and disclosure: at our request,
the Buyer shall provide all necessary
information on the inventory of goods owned by us and/or shall identify our title to the
goods on their packaging.
7.3. Late payment: in the event of late payment by the Buyer, we shall be entitled - without
rescinding the sales agreement and without granting a period of grace - to demand
the temporary surrender of the goods owned by us at the Buyer's expense.
7.4. Partial waiver clause: should the value of the securities exceed our claims by more
than 15%, we will waive securities of our choice to this extent.
7.5. In addition to Sec. 7.1
through 7.4, the following rules apply regarding the delivery of
goods with destinations in Germany, Austria, and Switzerland:
7.5.1. Expanded retention of title: if the Buyer has paid the purchase price for the goods
delivered but not yet completely fulfilled other debts arising from his business
relationship with us, we shall retain, in addition, title to the goods delivered until all
such outstanding debts have been completely paid.
7.5.2. Retention of title with processing clause: if the Buyer processes the goods delivered
by us, we shall be considered manufacturer and shall directly acquire sole title to the
newly produced goods. If the processing involves other materials, we shall directly
acquire joint title to the newly produced goods in the proportion of the invoice value of
the goods delivered by us to the invoice value of the other materials.
7.5.3. Retention of title with combination and blending clause: if the goods delivered by us
are combined or blended with material owned by the Buyer and such material has to
be considered the main material, it is deemed to be agreed that the Buyer shall
transfer to us the joint title to such main material in the proportion of the invoice value
of the goods delivered by us to the invoice value (or, if the invoice value cannot be
determined, to the market value) of the main material. The Buyer shall hold in custody
for us any sole or joint ownership originating therefrom at no expense for us.
7.5.4. Extended retention of title with blanket assignment: in the ordinary course of
business, the Buyer shall have free disposal of the goods owned by us, provided the
Buyer meets his obligations under the business relationship with us in due time.
When concluding the sales agreement with us, the Buyer already assigns to us all
claims in connection with the sale of goods to which we reserve the right of retention
of title; should we have acquired joint title in case of processing, combination or
blending, such assignment to us shall take place in the proportion of the value of the
goods delivered by us with retention of title to the value of the goods sold by the
Buyer. The Buyer already assigns to us any future confirmed balance claims under
current account agreements in the amount of our claims outstanding when concluding
the sales agreement with us.
7.5.5. Right of access and disclosure: furthermore, at our request,
the Buyer shall provide
all the necessary information on the claims assigned to us and/or shall notify his
customers of the assignment of the claims to us.
8. Defects
8.1. The Buyer is required to
inspect goods promptly after delivery and to give notice in
writing of any defect, false delivery or deviation in quantity immediately but not later
than one week after delivery. Delivered goods are deemed accepted if no written
complaint is made. Defects that could not be discovered during inspection after
delivery must be notified in writing immediately but no later than one week after
discovery.
8.2. In the case of timely and justified complaints, the warranty claims of the
Customer are
initially limited at our discretion to the delivery of non-defective goods or to remedying
the defect.
8.3. If our supplementary performance according to Sec. 8.2 fails, the Buyer may reduce
the purchase price or withdraw from the purchase contract at his discretion. Claims
for damages under Sec. 9 shall remain unaffected.
8.4. The filing of a complaint or any other claim does not release the Buyer from his
obligation of payment.
8.5. We do not warrant or guarantee that the product is free from patents or other
intellectual property rights of third parties.
8.6. The Buyer’s claims for defective goods become time-barred one year after receipt of
our products, notwithstanding any statutory provisions for a longer limitation period.
9.
Liability
We shall be generally liable for damages in accordance with the law and according to
the following rules: (i) In the event of a simple negligent violation of fundamental
contractual obligations, however, our liability shall be limited to compensation for
typical, foreseeable losses. (ii) In the event of a simple negligent violation of non-
fundamental contractual obligations, we shall not be liable. (iii) The foregoing
limitations on liability do not apply to damage to life, body or health.
10. Force Majeure
To the extent that any incident or circumstance beyond our control (including natural
occurrences, war, strikes, lock-outs, shortages of raw materials and energy,
obstruction of transportation, breakdown of manufacturing equipment, fire, explosion,
acts of government) reduces the availability of goods from the plant from which we
receive the goods, meaning that we cannot fulfil our obligations under this contract
(taking account of other supply obligations on a pro-rata basis), we shall (i) be
relieved from our obligations under this contract to the extent we are prevented from
performing such obligations and (ii) have no obligation to procure goods from other
sources. The first sentence also applies to the extent that such incident or
circumstance renders contractual performance commercially useless for us over a
long period or occurs with our suppliers. If the aforementioned occurrences last for a
period of more than 3 months, we shall be entitled to rescind the contract without the
Buyer having any right to compensation.
11. Miscellaneous
11.1. The place of jurisdiction is Hamburg. However, we shall be entitled to sue the Buyer
at his place of business.
11.2. The laws of the Federal Republic of Germany apply, excluding the
German rules
regarding the conflict of laws and the provisions of the United Nations Convention on
Contracts for the International Sale of Goods (CISG).
11.3. If a provision of these foregoing
General Sales Conditions is or becomes legally
invalid, the validity of the remainder of the provisions shall not be affected thereby.