These General Conditions shall apply to all sales and deliveries unless the Contracting Parties agree otherwise in individual cases. Any terms and conditions of the Buyer differing from those specified herein will not be binding on the Seller even in case of acceptance of an order, unless the Seller confirms in individual cases expressly acceptance thereof in writing.
2.1 The offers of the Seller are without engagement. Especially Seller reserves the right to make technical modifications as well as alterations in shape, colour and/or weight within the scope of the reasonable.
2.2 The Seller’s written order confirmation shall be conclusive in determining the extend of deliveries and performances. No collateral agreements or amendments shall be effective unless accepted by the Seller in writing.
2.3 The Seller shall be entitled to accept an order within two weeks of receipt by the Seller. The Seller can accept the order either in writing or by delivering the products to the Buyer.
2.4 The Seller shall be entitled to partial deliveries and to deliveries increased or decreased up to 10 % of the order value. If greater differences are usual for certain products such differences are deemed to be conform to the contract. Any difference in delivery shall be incorporated accordingly in the invoice.
3.1 Failing specific agreement to the contrary, the Seller’s prices are always for deliveries ex works including packing. Invoices will be with the addition of VAT at the level chargeable under the law.
3.2 In the absence of any other specific agreement payment shall be made without any deductions within two weeks upon the date of invoice. While he is in default, the Buyer shall pay interest at 8 % above base rate. The Seller reserves the right to claim provable exceeding damages.
3.3 The Buyers obligations to effect payment to the Seller are only considered as fulfilled if and when a given amount invoiced by the Seller is fully and irrevocably credited to the Seller’s account.
3.4 The Buyer is not permitted to withhold payments or offset any payments which are disputed by the Seller and not legally ascertained against claims of the Seller.
3.5 If the Buyer’s financial position substantially deteriorates, thereby creating a risk that any sum payable to the Seller might not be paid, than the latter shall be entitled to suspend deliveries until payment is effected or adequate security supplied.
4.1 Time of delivery is specified in the agreements of the contracting Parties.
4.2 The observation of the time of delivery shall be depending on the correct and timely delivery by subcontractors.
4.4 The delivery period or the delivery deadline shall be reasonably extended in case of any delay arising out of an industrial dispute, particularly strike or lock-out and in case of any other unavoidable obstacle to Seller’s performance of the contract (force majeure). This shall also apply where subcontractors may not deliver correctly or in time or where is a default of raw material or energy.
4.4 Ist die Nichteinhaltung der Lieferzeit auf höhere Gewalt, auf Arbeitskämpfe oder sonstige Ereignisse zurückzuführen, die außerhalb des Einflussbereichs des Verkäufers liegen, so verlängert sich die Lieferzeit angemessen. Dies gilt auch bei nicht rechtzeitiger oder nicht richtiger Selbstbelieferung sowie Energie- bzw. Rohstoffmangel.
4.5 Should the Buyer suffer damage or loss as a result of a delay in delivery for which the Seller is responsible, the Buyer shall to the exclusion of any other remedies be entitled to claim a lump-sum compensation. Such compensation shall amount to 0,5 % for each full week of delay, but limited to a maximum of 5 % of the value of the delayed part of delivery. In case of delay the Buyer shall be entitled to fix a final deadline for delivery. Should the Seller fail to meet such final deadline for a reason for which he is responsible, the Buyer shall be entitled to terminate the Contract. Further remedies with respect to Seller’s delay shall only be according to clause 9.
5.1 The sales terms agreed between the Contracting Parties shall be construed in accordance with the current version of the INCOTERMS as applicable at the time of Contract formation. Failing specific contractual arrangements the Contract products shall be deemed delivered “Ex Works” (EXW).
5.2 The risk of loss during the transport is always on Buyer’s account, even in case of deliveries carriage paid or deliveries free domicile except such deliveries are carried out by the Seller with own vehicles from his factory or warehouse. If the delivery delays or is omitted by reasons not attributable to the Seller, the risk shall pass to the Buyer when the Buyer has been notified of the readiness for shipment.
Verzögert sich oder unterbleibt der Versand infolge von Umständen, die dem Verkäufer nicht zuzurechnen sind, so geht die Gefahr ab Meldung der Versandbereitschaft auf den Käufer über
5.3 Partial deliveries are allowed.
5.4 In any case the Buyer shall be responsible for the unloading and placing into storage. If the Buyer collects the delivery himself or by a charged person, the Buyer shall be responsible for the loading of the cars and for the observation of the regulations of transport of hazardous materials.
5.5 When delivered in tank trucks and tanks the recipient shall care for a good condition of his tanks or other storage containers and he shall be responsible for the attachment of the filling pipeline to his reception system. The Seller shall only be responsible for the handling of the tank truck devices.
5.6 When personnel of the Seller help unloading or emptying they are acting at the sole risk of the Buyer not performing an obligation of the Seller; the Seller doesn’t assume any liability for damages resulting thereof.
5.7 All here mentioned regulations concerning the deliveries shall also apply to deliveries made by third carriers, if their doing could cause a liability of the Seller, the liability of the third party remains unaffected.
5.8 Increases of freight after conclusion of contract as well as other special costs arising from obstacles or delay of the transport by factors not attributable to the Seller shall be at the account of the Buyer.
5.9 Increases of custom duties, taxes and other fees arising after conclusion of contract are at the account of the Buyer.
6.1 If the goods are delivered by the Seller in returnable packaging, such packaging has to be sent back by the Buyer at his own cost and risk emptied and in proper condition to the Seller no later than 4 weeks from the date of arrival at the Buyer or if applicable the packaging may be returned free on vehicle of the Seller against notice of receipt.
6.2 If the Buyer fails to comply with this obligation the Seller shall be entitled to claim a adequate fee for the time exceeding the a.m. period of four weeks and after having set a time limit for the return of the packaging and the Buyer failed to do so the Seller may be entitled to claim the replacement cost of the packaging.
6.3 The markings on the returnable packaging must not be deleted. Returnable packaging must not be exchanged nor be filled with another product. The Buyer shall be liable for any deterioration, loss or exchange of the packaging irrespective of fault. The report of acceptance by the Seller shall be decisive. Any use as storage container or any transfer to third parties shall be unacceptable.
7.1. The Seller reserves the title to the delivered products until all the claims of the Seller under the business relationship have been settled in full.
7.2 The Buyer shall neither pledge nor transfer title to the delivered products as security. He shall inform the Seller without delay if any rights of attachment or confiscation or any other rights of disposal by third parties are exercised.
7.3 Any treatment or processing of the reserved good by the Buyer or a third party charged by him shall be made on the behalf of the Seller without any obligation for the Seller. The Seller shall be considered manufacturer in the terms of § 948 BGB and the Seller acquires title with any degree of processing of the products at least at the amount of the prices of the delivered goods. The Buyer and a respective possessor are only stakeholder for the Seller. In case of further processing with products of third parties the Seller acquires a co-ownership in the newly created product in proportion of the invoiced values of the treated products. Corresponding regulations shall apply according §§ 947,948 BGB in case of compounding or mixing of the reserved good with other goods.
7.4 While the Buyer fulfils his obligations toward the Seller, he shall be entitled to resale the product. However the Buyer may resale only with reservation of title. The Buyer assigns by now all claims accruing from such resale as security. The Buyer shall on demand of the Seller be obliged to nominate all the customers, to which he has sold the product.
7.5 If the Buyer does not comply with the contract e.g. in case of payment delay the Seller shall after a reminder be entitled to the recall and redemption of the products. The assertion of the reservation of title and the levy of execution by the Seller shall not be considered as rescission of contract.
7.6. A petition in bankruptcy shall entitle the Seller to rescind the contract and to claim the immediate return of the delivered product.
8.1 The Buyer must inspect the delivered goods and the packing for defects in type of goods, in quantity and quality upon delivery without delay insofar as can be expected by trial processing. If the goods are delivered in individual items, the Buyer must moreover inspect the labels of each item about its conformity with the order. If the good is delivered in tank vehicles or in tanks which don’t remain with the Buyer, the Buyer shall inspect the documents accompanying the transport about the conformity with the order. While emptying the tanks the Buyer shall take a sample to inspect it for its conformity according the contract.
8.2 The Buyer shall notify the Seller within eight (8) days after receipt of the goods in writing by letter or by fax of defects discovered during the inspection.
8.3 If the Buyer fails to inspect or if he fails to notify an ascertained or ascertainable defect in due time he loses the right to warranty concerning such ascertained or ascertainable defect. The same shall apply in case of a wrong delivery by mistake even if the deviation will be so significant that the acceptance of the goods by the Buyer shall be deemed to be excluded.
8.4 If a defect appears afterwards which was not ascertainable at a careful inspection after the receipt of goods (hidden defect), such defect shall be notified without delay in the manner described beforehand. Otherwise the goods shall be deemed to be insofar according the contract.
8.5 The Buyer shall give to the Seller the possibility to proof his complaints or he shall place at the Seller’s disposal the rejected goods at the demand of the Seller. Otherwise the warranty claims will be disregarded.
8.6 In case of sale by sample the specifications of the sample are not assured. The sample is without obligation to describe the goods approximately.
8.7 The Seller shall not be liable for the fitness of the delivered goods for the purposes intended by the Buyer. The consulting for the appliance, advices or suggestions made by the Seller is to the best of Seller’s knowledge. Such suggestions are without obligation, because the real appliance is beyond the influence of the Seller and the real conditions cannot be foreseen by him.
8.8 In case of justified defects notified in due time the Seller shall at his option either repair such defect or replace the defective parts free of charge (supplementary performance). In case of supplier’s recourse (§§ 478,479 BGB) the Buyer shall have the option. The Buyer shall obtain the approval of the Seller before returning the goods.
8.9 If the Seller does not remedy defects or deliver replacement parts within a reasonable period set by the Buyer or if the supplementary performance fails (whereby the Seller shall be entitled to two attempts) or if the Seller refuses supplementary performance or such supplementary performance cannot reasonably be expected, the Buyer shall have the right to withdraw from contract or the right to reduce the price. Further remedies with respect to warranty shall only be permissible within the limits of clause 9. The right to withdraw shall not apply in case of insignificant defects.auf Rücktritt gilt nicht im Falle eines unerheblichen Mangels.
8.10 Warranty claims shall be time-barred one year after delivery of the goods.
9.1 Any liability whatever of which legal reason for loss or damage accruing not to the delivered products shall only be accepted by the Seller if such loss or damage is caused by slight negligence of a substantial contract obligation or by gross negligence or intent or malice of the Seller or if the Seller has guaranteed the absence of a defect. If the Seller shall be liable for the slight negligence of a substantial contract obligation the liability of the Seller shall be limited to such loss or damage which might typically be predicted.
9.2 Moreover the Seller shall be liable for claims according the Product Liability Act and for damages because of culpable injury to live, body or health.
9.3 Any other claims are excluded.
Seller shall only grant resale rebates under the reserve that all transactions are settled duly. The transactions shall only be considered to be settled duly if the account of the Buyer is balanced and the payments are credited irrevocably to the account of the Seller.
11.1 Both parties shall be obliged to keep secret all confidential business information of the other party obtained during their cooperation; this shall also apply after the end of the cooperation.
11.2 All claims of the Buyer whatever of which legal reason shall be time-barred after 12 months. For claims resulting out of deliberate and malicious acts and for claims according the Product Liability Act the legal periods shall apply.
11.3 The place of fulfilment for duties arising from the deliveries is Dorsten, Germany.
11.4 The German law shall apply. The legal venue shall be Dorsten. If the place of business of the Buyer is outside Germany the suing party may have the possibility that all disputes arising out or in connection with the contract including disputes on its conclusion, binding effect, amendment and termination shall be resolved to exclusion of ordinary courts by an arbitral tribunal in accordance with the International Arbitration Rules of the Zurich Chamber of Commerce by one arbitrator. If the value in dispute exceeds 100.000,00 EUR the arbitral tribunal shall have three arbitrators; in this case each party shall nominate one arbitrator.
Dorsten, 11.07.2011
