1. General, scope of application
- These General Terms and Conditions (GTC) apply to all our business relationships with our customers (hereinafter: “Customer”). The GTC only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
- The GTC apply in particular to contracts for the sale and/or delivery of movable items (hereinafter also: “goods”), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB), for contracts for (consulting) services and the execution of sampling and analysis of samples (hereinafter also referred to as “service”). The GTC in their respective version shall also apply as a framework agreement for future contracts with the same customer, without us having to refer to them again in each individual case. Changes to the GTC will be notified to the customer in writing or electronically. They shall be deemed approved if the customer does not object in writing or by the agreed electronic means. The customer will be specifically informed of this consequence during the announcement. The customer must raise the objection within four (4) weeks after notification of the changes.
- Our terms and conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This approval requirement applies in any case, for example even if we carry out the delivery or service to the customer without reservation in knowledge of the customer’s GTC.
- Individual agreements made with the customer in individual cases (including subsidiary agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or our written confirmation shall be decisive for the content of such agreements.
- Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing in order to be effective.
- References to the validity of statutory provisions have only clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
- Our offers are subject to change and non-binding. This also applies if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve ownership rights and copyrights.
- The order of the goods by the customer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within four weeks of its receipt by us. The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
- Orders shall only become binding if they are confirmed by us in writing within two weeks of a corresponding declaration of intent by the customer. If a written order confirmation is not available, the contract is concluded under the conditions of our offer with the delivery/handover of the products by us.
3. Performance deadlines and default
- The deadlines for deliveries and services are agreed individually or specified by us upon acceptance of the order or the (service) order. If this is not the case, the performance period is four (4) weeks from the conclusion of the contract.
- If we are unable to comply with binding performance deadlines for reasons for which we are not responsible, we will inform the customer immediately and at the same time inform the customer of the anticipated new performance period. If performance is also not possible within the new period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the customer.
- The occurrence of our default shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer is required.
- The rights of the customer according to § 11 below and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the service and/or subsequent performance) remain unaffected.
4. Delivery, transfer of risk, acceptance, default of acceptance
- The delivery of goods for chemicals within Germany takes place free domicile (CPT according to Incoterms 2020), abroad and for other deliveries ex works/warehouse (EXW according to Incoterms 2020), where the place of performance is also located. At the request and expense of the customer, the goods will be shipped to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.
- If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible (e.g. unsuitable unloading point), we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs, transport costs).
5. Prices and terms of payment
- Unless otherwise agreed in individual cases, the prices valid on the day of provision of the service or our current prices at the time of conclusion of the contract shall apply. They only include the services specified in the contract. Additional or special services that are not covered by the contract as well as contingent items or costs for services of third parties listed in the list of services will be invoiced separately, provided that they were initiated by the customer or are prescribed by law. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
- All prices are exclusive of VAT. If the prerequisites for this are met, billing is based on the reverse charge procedure. Insofar as the principles of exchange-like turnover apply to the contractual relationship or an act is later classified as taxable for VAT purposes, the customer must ensure the necessary cooperation for proper billing (e.g. invoicing) even after termination of the contractual relationship. Any subsequently levied sales tax or reduced input tax must be refunded to us upon proof.
- In the case of sale by dispatch (§ 4 para. 1), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the customer. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance, it becomes the property of the customer.
- Unless otherwise agreed, the price is due for payment without deduction within fourteen (14) days of invoicing and delivery or acceptance of the goods. Discounts shall be granted on the basis of a written agreement and only if there are no longer any old claims due. Under no circumstances will a discount be granted on the freight costs or other logistics services included in the invoice amount. For contracts with a delivery value of more than EUR 2,500, however, we are entitled to demand a down payment of 30% of the purchase price. The deposit is due for payment fourteen (14) days after invoicing.
- In the case of payments by direct debit, the customer is obliged to issue a binding direct debit mandate. We are entitled to send the customer the pre-notification with less than fourteen (14) days before the due date.
- If the credit note procedure has been agreed, the delivery or service shall be invoiced on the basis of the delivery note or proof of performance. We will receive a credit note from the customer as proof of the recorded delivery or service within fourteen (14) days of delivery or service. For each delivery note or proof of performance, the delivery or service is shown according to type and quantity, net prices, VAT rate and VAT amount as well as the total amount. The credit agreement may be terminated by either party with six (6) weeks’ notice to the end of the month.
- Upon expiry of the agreed payment period, the customer shall be in default. The purchase price shall bear interest during the period of default at the applicable statutory default interest rate. We reserve the right to assert further damages caused by default. With regard to merchants, our claim to the commercial maturity interest (§ 353 HGB) remains unaffected.
- The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed or is in a close reciprocal relationship to our claim. The customer is also only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. In the event of defects in the delivery or service, the rights of the customer, in particular in accordance with § 9 paragraph 6 sentence 2 of these GTC, remain unaffected.
- If, after conclusion of the contract, it becomes apparent that our claim for payment is endangered by the customer’s inability to pay (e.g. by filing for the opening of insolvency proceedings), we are entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the production of unjustifiable items (custom-made items), we can declare the withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
6. Price adjustment
- If the costs underlying the price calculation, in particular wage and ancillary wage costs, energy costs, taxes, levies, relevant raw material price indices and costs for services of third parties (e.g. logistics, subcontractors), etc., change in the case of continuing obligations or services that are to be provided only after 1 month after conclusion of the contract, we shall be entitled to adapt the contract to the changed conditions.
- If additional costs arise during the term of the contract due to changes in legal regulations, official requirements and/or fees and other charges, we may demand an adjustment of conditions corresponding to the proven cost increases from the time of the changes.
- The adjustment must be made in writing, stating the reason for the change. If the price adjustment in accordance with paragraphs 1 and 2 above leads to a cost increase of more than 10% of the agreed total price, the customer is entitled to terminate the contract with a notice period of 4 weeks to the end of the quarter.
- Until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we reserve title to the goods sold.
- The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if and to the extent that third parties access the goods belonging to us.
- In the event of breach of contract by the customer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for surrender does not at the same time include the declaration of withdrawal; rather, we are entitled only to demand the return of the goods and reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if such a deadline is dispensable under the statutory provisions.
- The customer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply additionally.
- The retention of title extends to the products resulting from processing, mixing or combining our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the case of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
- The customer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the customer mentioned in paragraph 2 shall also apply with regard to the assigned claims.
- In addition to us, the customer remains authorised to collect the claim. We undertake not to collect the claim as long as the customer meets his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. However, if this is the case, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
- If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.
8. Customer’s claims for defects
- The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title (including incorrect and short deliveries), unless otherwise specified below. In all cases, the statutory special provisions for final delivery of the goods to a consumer (supplier recourse according to §§ 478, 479 BGB) remain unaffected.
- The basis of our liability for defects is above all the agreement made on the quality of the goods and the type and scope of the service. The product descriptions designated as such, which were provided to the customer before his order or included in the contract in the same way as these GTC, shall be deemed to be an agreement on the quality of the goods.
- If the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 para. 1 sentences 2 and 3, § 633 para. 2 sentence 2 BGB). However, we assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
- The customer’s claims for defects presuppose that he has fulfilled his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, we must be notified of this immediately in writing. The notification shall be deemed immediate if it is made within three (3) days after becoming aware of it, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer must report obvious defects (including incorrect and short delivery) in writing within one week of delivery, whereby the timely dispatch of the notification is also sufficient to meet the deadline. If the customer fails to carry out a proper inspection and/or notification of defects, our liability for the defect not notified shall be excluded.
- If the delivered item or performance performed is defective, we can initially choose whether we provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
- We are entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
- The customer must give us the time and opportunity necessary for the supplementary performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install it.
- The expenses necessary for the purpose of inspection and supplementary performance, in particular transport, travel, labour and material costs (not: removal and installation costs), shall be borne by us if a defect actually exists. However, if a customer’s request to remedy the defect turns out to be unjustified, we can demand reimbursement of the resulting costs from the customer.
- In urgent cases, e.g. if operational safety is endangered or to avert disproportionate damage, the customer has the right to remedy the defect himself and to demand reimbursement from us for the objectively necessary expenses. We are to be informed of such self-remedy immediately, if possible in advance. The right to self-remedy does not exist if we would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.
- If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the price. In the event of an insignificant defect, however, there is no right of withdrawal.
- Claims of the customer for damages or reimbursement of futile expenses exist only in accordance with § 11 and are otherwise excluded.
- Notwithstanding § 438 (1) No. 3 or § 634 a (1) BGB, the general limitation period for claims arising from material defects and defects of title is one (1) year from delivery or provision of services. Insofar as acceptance has been agreed, the limitation period begins with acceptance.
- However, if the goods are a building or an object that has been used for a building in accordance with its usual use and has caused its defectiveness (building material), the limitation period in accordance with the statutory regulation is 5 years from delivery (§ 438 para. 1 no. 2 BGB). Special statutory provisions for claims for restitution in rem of third parties (§ 438 para. 1 no. 1 BGB), fraudulent intent (§ 438 para. 3 or 634 a para. 3 BGB) and for claims in supplier recourse in the event of final delivery to a consumer (§ 479 BGB) shall also remain unaffected.
- The above limitation periods of the sales law also apply to contractual and non-contractual claims for damages of the customer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to claims for damages of the customer in accordance with § 11.
- Unless otherwise stated in these GTC, including the following provisions, we shall be liable in accordance with the relevant statutory provisions in the event of a breach of contractual and non-contractual obligations.
- We shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable
• for damages resulting from injury to life, limb or health,
• for damages resulting from the breach of a material contractual obligation (obligation the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
- The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods. The same applies to claims of the customer under the Product Liability Act.
- Due to a breach of duty that does not consist of a defect, the customer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
11. Term of contract and termination
- The contract has a term of 2 years, unless otherwise agreed. It is extended by another year if it is not terminated with a notice period of 3 months before expiry.
- The right of the contracting parties to extraordinary termination without notice for good cause remains unaffected. An important reason exists in particular
• in the event of insolvency of the client or application for the opening of insolvency proceedings against his assets or dismissal of proceedings for lack of assets pursuant to § 26 InsO,
• if trade credit insurance can no longer be taken out for the client if essential contractual obligations are repeatedly violated.
- Termination must be in writing.
12. Applicable law, place of jurisdiction
- These GTC and all legal relationships between us and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. Prerequisites and effects of the retention of title pursuant to Section 7) are subject to the law of the respective storage location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective.
- The place of jurisdiction is the court responsible for the registered office of the supplier. However, the supplier is entitled to take legal action at the customer’s headquarters.
- The place of performance for all liabilities arising from the contract, including the customer’s payment obligations, is the registered office of the supplier.
13. Force majeure
- The contractor’s obligation shall be suspended as long as the provision of the delivery or service becomes significantly more difficult or impossible for reasons for which he is not responsible (e.g. force majeure or other circumstances such as strikes, lockouts or official orders). The execution periods shall be extended by the duration of the disruption. This applies equally to weather-related disturbances.
- The data collected in connection with the contract will be collected, processed and used by the parties within the meaning of the Federal Data Protection Act in its currently valid version.
15. Final provisions
- Should one or more provisions of these General Terms and Conditions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties undertake to immediately replace invalid or unenforceable provisions with effective provisions that come closest to the economic purpose of the invalid provisions. The same applies in the event of a gap in the contract.