Terms and Conditions

General Conditions of Sale and Delivery Version: 01.05.2024

1. Extent of Validity

1.1.
Any deliveries and performances shall be exclusively made according to the following conditions unless otherwise confirmed by us in writing in our order confirmation or otherwise. Conditions of purchase established by the buyer (in the following “Buyer”) are ineffective notwithstanding the fact that we will not expressly contradict or if orders are accepted without reservation.
1.2.
Any invalidity of individual clauses of these General Conditions of Sale and Delivery will not affect the validity of the remaining provisions. If a separate supply agreement or supply contract is made, these General Conditions of Sale and Delivery shall apply unless they are expressly excluded.

2. Offer and Order Confirmation

2.1.
Our offers are not binding. Any orders and their modifications or supplements as well as side agreements are first binding for us when and to the extent that we have confirmed them in writing.
2.2.
Verbal agreements, assurances and guarantees of our employees in connection with the closure of the contract first become binding with our written confirmation. The waiver of this requirement of written form must also be made in writing. Telefax and email fulfill the written form requirements.

3. Purchase price and Payment

3.1
Unless otherwise agreed, our prices are always subject to additional VAT, all other taxes and duties, and delivery costs.
3.2
Unless prices are stated to be fixed in our order confirmation, we may increase the purchase price in accordance with increases of our costs or general price list increases occurring after the date of our order confirmation but before delivery.
3.3
Unless otherwise stated on our order confirmation or otherwise agreed between us and the Buyer in writing, the invoices are instantly payable in the currency stated in our invoice on the date of invoice net without deduction. A deduction of cash discount is always excluded if the Buyer defaults on payment.
3.4
Cheques and bills of exchanges are only allowed with our prior written consent and are accepted only as conditional payment. Any bank fees involved in payment procedures are for the account of the Buyer.
3.5
If the Buyer defaults on payment or if his credit standing becomes doubtful we are entitled to ask for prepayment and immediate payment of all outstanding claims, irrespective of any acceptance of bills of exchange/ cheques. Further, we may cancel the agreed terms of payment and make future deliveries depending on prepayment and securities.
3.6
The Buyer shall pay interest of 9 percent points over the respective basic interest rate from the due date unless a higher damage is proved by us.
3.7.
The Buyer is not entitled to withhold payments or offset them against any counter claims unless the counter claim is undisputed or recognized by declaratory judgement.
3.8.
In the event of default of payment, we are entitled to rescind the contract after expiration of the deadline fixed for the payment, to take the products delivered back and to claim for damage. In the case of rescinding the contract the Buyer shall compensate us not only for the loss of profit, the costs incurred and use made of the products supplied, but also for any reduction value and other damages we are suffering from the Buyer's default of payment.

4. Delivery

4.1.
Any dates specified by us for delivery of the products are intended to be an estimate and time for delivery shall not be binding unless a fixed date has been specifically agreed in writing.
4.2.
Even time of delivery assured and confirmed as binding will be respectively extended in case of delayed deliveries as the result of force majeure, including without limitation acts of God, war, acts of
terrorism, protests, riot, fire, explosion, earthquakes, flood, epidemic, strikes, lockouts, operating troubles, shortage of manpower and raw material, transportation hold-ups as well as governmental directives which will prevent or delay the production or transportation. This shall also apply if suppliers of ours or companies affiliated with us and their suppliers are affected by one of the aforementioned circumstances. We shall inform the Buyer about such Force Majeure events without delay. If the delivery is permanently made impossible by foresaid events we are authorized to repudiate the contract without any liability for damages.
4.3.
We are not liable for inability or delays in fulfilling delivery obligation, if and to the extent that these are caused by circumstances and the responsibility of the Buyer - in particular due to his fulfillment of public legal obligations under the valid version of Directive (EG) No.1907/2006 (REACH Regulation).
4.4.
Deliveries by installments are admitted and can be separately charged.
4.5.
In the case of products consigned in bulk for by weight, the Buyer shall accept normal manufacturing tolerances and quantities/weights varying by not more than 10% from the contract quantity/weight, and shall pay pro rata for the actual quantity/weight delivered. The quantity stated on our dispatch order confirmation shall be conclusive evidence of the amount delivered, unless the Buyer can provide conclusive evidence proving the contrary.
4.6.
In case of multiple delivery contracts, we may fix a reasonable deadline for the request or acceptance for the partial delivery and after its expiration terminate the contract and claim damages for nonperformance in respect for the remaining quantity ordered.
4.7.
If by our fault we do not keep a delivery time which was assured and confirmed in writing, the Buyer shall be entitled to set a reasonable period of grace after the expiration of the delivery time and to terminate the contract after the expiration of the period of grace. Claims for damages caused by undue delay shall be excluded. Insofar as products are delivered from overseas “reasonable” shall be a period of grace of at least 12 weeks.
4.8.
Unless otherwise agreed upon between the parties in writing, the risk of loss or damage in case of delivery not free of charge shall pass to the Buyer when the product is handed over to the carrier or
forwarder, in other cases, when the product is handed over to the Buyer.
4.9.
If the Buyer or his customer (in the case of direct delivery) is in default with the acceptance of the delivery or if he refuses to accept the delivery for no apparent reason, we are entitled to charge the Buyer for the costs incurred as a result and to claim any additional damages.

5. Retention of Title

5.1.
The title to all products delivered remains with us until the Buyer has fully paid all and any claims arising from the business relationship with us. The retention of title remains even valid if separate claims are included in a current account and the balance is stricken and accepted.
5.2.
Processing or conversion of our products subject to retention of title is carried out on our behalf without any obligation arising for us. We are considered to be the manufacturer within the meaning of article 950 German Civil Code and acquire ownership of the intermediate and the end products in the ratio of the invoice value of our products to the invoice value of third-party goods. The same applies in the event of combination or mixing of our products with third-party products in the meaning of article 947, 948 German Civil Code.
5.3.
The Buyer holds the retained property in custody for us free of charge and undertakes to insure it against the normal risks, such as but not limited to fire, water, theft etc. The Buyer is obliged to strictly comply with the conditions in accordance with our Safety Data Sheet of the respective product. The Buyer may sell, use for manufacture, mix or combine the products with retained title only in the course of his ordinary business and only as long as he is not in default of payment; he is not entitled to otherwise dispose of the products to which the title has been retained, especially not to pledging and assignment by bill of sales as a security. The power of disposition shall end if the Buyer stops payments, is in the danger of becoming insolvent, and further if we revoke the contract.
5.4.
If the Buyer resells the products, with title retained he already herewith assigns his claims arising from the resale together with all subsidiary rights to us until full payment of all claims arising from the business relationship. If the Buyer sells products of which we only have partial ownership according to No.
5. 2., he assigns to us his claims against the third parties in the corresponding partial sum. If the Buyer uses the products within the scope of contract of work or similar agreement, he assigns the corresponding claim to us. The Buyer undertakes to give us all information and documents necessary for pursuing our rights against the Buyer’s customers. In case of levies of execution or seizure attachments by third parties the Buyer must promptly inform us.
5.5.
We will release the securities at the request of the Buyer or a third party which is impaired by our exceeding securities, as far as the value exceeds our claim to be secured by more than 10 %.
5.6.
As far as the respective national law, where the products are in custody of the Buyer, requires further steps for the validity of the retention of title, for example, the registration with a registry, the Buyer has to perform them on his costs and has to deliver evidence about this to us.

6. Warranty

6.1.
We warrant that the products have the contractually agreed specification at the time of the transfer of risk. We make no other warranties or guarantees, including but not limited to merchantability, fitness for a particular purpose and non-infringement of third-party rights. Any advice in the mode of application is not legally binding on us, and we do not warrant that the products are fit for any particular purpose or of intended use by the Buyer, and it is for the Buyer to satisfy himself that the products are so fit. References to norms or similar regulations, information and safety data sheets, information on the applicability of the products and statements in advertisements are neither warranties nor guarantees. The same applies to conformity declarations. In particular, pertinent identified uses according to the REACH Regulation (EG) No. 1907/2006 represent neither an agreement concerning a corresponding contractual property nor contractually stipulated utilization.
6.2.
Immediately after receipt the Buyer must check the labelling of each individual package to ensure that it corresponds with the order, examine the products for packaging damage or deviation in quantity and must inform us without delay in writing about any respective reclamation indicating the order data, invoice- and lot number. Other defects must be notified to us in writing and immediately when they become visible. In the event of late notification of defects, the delivered products shall be deemed to have been approved by the Buyer in accordance with the contract. Upon commencement of decanting, refilling, combining, processing or mixing with other items, the delivered products shall be deemed to have been approved by the Buyer in accordance with the contract.
6.3.
If the notice of defect was made in due time and is justified we will undertake at our option to remove the defect or supply defect free products [supplementary performance]. If the supplementary performance does not come about or is refused, then the Buyer may exercise his legally prescribed rights. If the defect is not substantial and/or the products have already been sold, processed or transfigured, then the Buyer is only entitled to the right of reduction. The same applies to replacements and repairs as to the products themselves.
6.4.
We may refuse remedy defects if the Buyer fails to comply with the obligations laid upon him. Unless caused through our fault, we do not assume any warranty for defects, caused through inappropriate or improper use, defective assembly or putting into service through the Buyer or third persons, usual wear and tear, incorrect or careless treatment or excessive usage.
6.5.
Further claims are excluded according to the provisions of article 7. This applies in particular to claims for damages which are consequential to defects and not on the products themselves.

7. Limitation of Liability and time limitation

7.1.
Regarding the infringement of contractual and non-contractual obligations, in particular regarding impossibility, delay, culpa in contrahendo and tortuous acts, we are only liable - also for our executive managers and other agents - in cases of deliberate intent and gross negligence, limited to the contractinherent damage foreseeable when the contract was concluded. Otherwise, we exclude our liability for damages consequent to defects.
7.2.
These restrictions are not applicable in case of culpable violation of substantial contractual obligations if the achievement of the objective of the contract is at risk, in cases of compulsory liability according to the Product Liability Act, in case of injury to life, person and health, and also if we have fraudulently concealed defects of the products or guaranteed the absence of defects. Regulations on the burden of proof remain unaffected here.
7.3.
Unless otherwise agreed in writing, contractual claims that the Buyer has against us, because of and in connection to the delivery of products or our other services, shall lapse 12 months after the transfer of risk or 12 months after the provision of the other services. This does not affect our liability arising from intentional and grossly negligent breaches of obligation, culpably effected damages to life, body and health.

8. REACH

If the Buyer notifies us of a use according to article 37.2 of the Directive (EG) No. 1907/2006 of the European Parliament and the Council on registration, evaluation, authorization and restriction of chemical substances (REACH Regulation) which requires an updating of the registration or substance safety data report, or another obligation under the REACH Regulation, the Buyer bears all verifiable expenditure. We are not liable for any delivery delays resulting from the notification of this use and the fulfillment of the corresponding obligations according to the REACH Regulation. In case, for reasons of health or environmental protection, it is not possible to include this use as an identified use, and should the Buyer intend, contrary to our advice, to use the products in a manner we discourage, we can withdraw from the contract. The Buyer cannot deduce any rights against us from the above-mentioned regulations.

9. Jurisdiction and Governing Law, Place of fulfillment

9.1.
Place of fulfillment for payments and deliveries is Düsseldorf. The place of jurisdiction is, at our choice, Düsseldorf or the seat of the Buyer.
9.2.
The contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany with the exclusion of the rules of conflict of laws. The application of the United Nations Convention for the International Sales of Goods, CISG, of 11th April 1980 is excluded.
9.3.
In case of doubt, the German version of the agreement and of these General Conditions of Sale and Delivery shall have priority over versions in other languages.