Our Terms & Conditions apply only to enterprises (Section 14 German Civil Code (BGB)), and are deemed to apply to all future transactions with that ordering party.
Our Terms & Conditions are deemed to be exclusive. Other terms and conditions of the ordering party that deviate from our own Terms & Conditions shall not apply even in the event that we do not explicitly reject them.
Where these Terms & Conditions are incomplete, the terms and definitions of the INCOTERMS 2010 shall apply.
Effective conclusion of the contract
Our quotations are non-binding as regards price, quantities, delivery period and availability. Similarly, technical descriptions and other details in quotations, brochures and other literature are initially non-binding.
Orders are not binding until confirmed by us in writing. Where delivery is at short notice, the invoice issued by us shall apply instead of an order confirmation.
Oral agreements shall only be binding on us if we have confirmed them in writing and to the extent confirmed. Details within the context of Section 1 above and comments made by us and our agents (Section 434(1) Sentence 3 German Civil Code (BGB)) shall not become integral parts of the specifications unless and until referred to explicitly in the contract.
Where an order is based on a specimen, we endeavour to deliver the same quality and embodiment as the specimen; however, minor deviations shall not justify a complaint by the customer.
Unless otherwise stipulated, our prices are deemed to be CIP – "Carriage and Insurance Paid to" and including normal packaging.
Prices are ex VAT; VAT is added at the rate applicable on the date of invoicing and included on the invoice as a separate item.
Delivery and transfer of risk
The extent of our obligation to deliver is contained in full in the contract. We reserve the right to make changes resulting from improvements to our technology or legal requirements, provided these changes are not of a material nature or unreasonable from the point of view of the ordering party.
The place of performance is the place of registration of our company Head Office. Provided no other arrangement has been confirmed in the confirmation of order, delivery shall be CIP – "Carriage and Insurance Paid to".
Our obligation to deliver is deemed to have been met as soon as the goods have left our plant or the ordering party has been notified that the goods are ready for dispatch. Risk is transferred to the customer the moment the goods are handed to the freight forwarder or his agent or any other person charged with transporting the goods but, in any event, at the latest the moment the goods leave our plant. This shall also apply where we have agreed to transport the goods to the person or organisation responsible for freight forwarding. The transport route and method of transport shall be at our discretion; where appropriate, the wishes of the ordering party can be taken into account.
Protection of ground water
Once the ordering party or his agent has taken possession of the goods, all obligations arising in connection with German ground water protection legislation and legislation for the maintenance of German inland waterways is deemed to be transferred to that party. The ordering party is required to inspect goods without delay on receipt and to check, before processing or reselling them, that they are in order.
Delivery times are dependent on fulfilment of agreed payment terms and shall depend on the ordering party's compliance with contractual provisions. Our obligation to deliver is deemed to be held in abeyance as long as the ordering party is in arrears with any liabilities. Where we become aware of circumstances which may provide reasonable grounds for doubting the solvency or creditworthiness of the customer, we reserve the right to insist on prepayment or collateral for any outstanding orders. If any information or circumstances lead us to suspect that our rights under the contract are in jeopardy, we reserve the right to withdraw from the contract with no obligation on our part to pay any damages while, at the same time, maintaining all our rights under the contract and any partial deliveries already made if collateral is not forthcoming within twelve working days of our notice.
If, when the ordering party calls for shipment, completes acceptance or collects goods, he is in arrears or if delay of dispatch or delivery is down to circumstances for which the ordering party is responsible, then without prejudice to any additional claims, we shall be entitled to claim flat rate charges in line with local storage rates irrespective of whether the goods are stored on our premises or with a third party. The ordering party shall be entitled to prove that the damage caused was of a lesser degree.
If we do not receive delivery of the items ordered even though we have placed comparable orders with reliable suppliers, we are released from our duty to supply and reserve the right to withdraw from the contract.
If the agreed delivery time is delayed as a result of circumstances beyond our control or those of our suppliers, the delivery period is extended by a corresponding amount. We undertake to notify the ordering party without delay if such circumstances arise. In the event the said circumstances continue for one month beyond expiry of the agreed delivery period, either Party shall be entitled to withdraw from the contract. No further claims for damages resulting from non-compliance with the delivery period due to circumstances beyond our control shall be entertained.
In the event of delays in delivery, the ordering party shall be entitled to claim payment of a penalty amounting to 3% of the value of the goods involved for each full week of the delay, where the total penalty paid shall not exceed 10% of the value of said goods. The ordering party can, as an alternative, set a reasonable extension period in writing which, however, must be at least 15 working days. If that extension period shall pass without our being able to deliver, the ordering party shall be entitled to withdraw from the contract or claim damages instead of delivery of the goods. Liability for damages is limited to 50% of the damage that has occurred.
Section 5 shall not apply if the delay is caused by intent, gross negligence or infringement of a key obligation under the contract. That section shall also not apply if a commercial fixed-date transaction has been agreed.
If partial deliveries are a reasonable option to the ordering party, these may be carried out and invoiced.
If deliveries are made as on-call shipments, our obligation to deliver become void if the ordering party does not make a call-up within 6 months of our confirmation of order. We reserve the right in such cases to require acceptance of the goods or damages due to non-performance.
If dispatch is delayed at the request of the ordering party, we reserve the right, starting one month after our notification that the goods are ready for dispatch, to dispose of the goods in some other way and to supply the ordering party after a correspondingly extended delivery period.
Information and consulting
Information on the application and processing options of our products, technical and application-specific consultation and other details are provided to the best of our knowledge and ability to the exclusion of all liability, unless intent or gross negligence is involved. All details provided, including those in product descriptions, technical data and safety data sheets do not absolve the ordering party from the need for his own inspections and tests to check suitability of the products for the intended processes and purposes.
Invoice amounts are due on the agreed date net in cash or by bank transfer. The invoice amount is considered to have been paid on the day it is available to us without conditions.
Bills of exchange - whose acceptance is conditional - will only be accepted as conditional payment subject to the availability of discounting possibilities and against reimbursement of bank, discount and redemption charges; acceptance is not deemed as a cash payment.
The purchaser shall only have a right to offset or withhold claims or receivables which are undisputed and have been legally established.
Ordering parties from whom we do not regularly receive orders are requested to supply bank and trade references: otherwise we reserve the right to supply goods only COD (cash on delivery).
Obligation to inspect goods received, duty to file complaints in a timely manner, warranty
The ordering party is responsible for adhering to the inspection and complaint provisions of Section 377 German Commercial Code (HGB) regarding material defects. Complaints about defects can only be taken into account if communicated in writing without delay, i.e. at the latest within 8 working days of receipt of the goods at the destination given by the ordering party; such a complaint dies not absolve the ordering party from the obligation to male punctual payment in full.
Hidden defects must be communicated immediately on discovery. Once the goods delivered have been processed or partially processed or mixed with other substances no complaints can be entertained.
Any material defects that do not prevent the goods being used for the purpose known to us or only have a minor impact on their use shall not entitle the ordering party to any warranty or similar claims.
If the goods have material defects at the moment of transfer of risk, we are entitled and obliged to provide remedial performance. Remedial performance shall be, at our discretion, either rework or replacement delivery. The costs of remedial performance, in particular transport, travel, work and material costs shall be borne by us. Where these costs amount to more than 50% of the value of the goods delivered, we reserve the right to refuse remedial performance.
Insofar as remedial performance is not effected, or is not effected within an appropriate period set by the ordering party or is declined, the ordering party is entitled at his discretion to withdraw from the contract, or to demand a reduction in the purchase price in accordance with the value of the defect (reduction) or, within the bounds of the following paragraphs, to demand compensation in lieu of performance.
If the material defect is the cause of a loss or injury we accept liability in accordance with the statutory provisions if it is a personal injury, or the damage is subject to product liability legislation or if intent or gross negligence are involved.
If the loss is the consequence of a culpable breach of an essential contractual obligation, we accept liability only for damage and loss typical for contracts of this nature.
No further contractual claims by the ordering party or those relating to culpable liability shall be entertained. As a result, we are not liable in particular for damage that has not occurred to the goods delivered, or for loss of profit or any other financial loss experienced by the ordering party.
Section 478 German Civil Code (BGB) shall be unaffected by the aforegoing Sections 2 to 8.
Miscellaneous liability for damages
The provisions in Section 9 (5) to (7) apply also to claims for damages arising from other violations of obligations.
In the event a condition already existing when the contract was concluded is infringed, or a barrier to fulfilment existed at the time the contract was concluded (Sections 311(2) and 311a German Civil Code (BGB)), our compensation liability shall be limited to placing the Buyer in the position which would have prevailed if s/he had not placed his/her faith in the validity of the business (negative interest).
Our liability in tort is governed by the provisions in Section 9 (5) to (7) as appropriate.
Where our liability is excluded or restricted, this also applies to the personal liability of our employees, workers, external contractors, and agents.
Statute of limitations
The right of the ordering party to require remedial fulfilment shall lapse two years after delivery of the goods subject to Sections 438 (2), 479 German Civil Code (BGB). As a consequence, the right to withdraw from the contract or reduce the price will be excluded in accordance with the legislative provisions.
Claims for damages are subject to a period of limitations of one year in accordance with Sections 438 (2) and 479 German Civil Code (BGB).
The statutory periods of limitations shall apply in the event of claims under product liability legislation, intent and gross negligence.
Retention of title
We retain all property rights to all goods delivered until all our claims against the ordering party resulting from our business transactions including any future claims resulting from contracts signed at the same time or at a later date have been paid in full. This also applies if receivables are transferred to an open account and the balance has been calculated and acknowledged.
The ordering party is entitled to resell or process the goods in the course of its normal business activities. Any treatment or processing of the goods supplied shall be performed by the ordering party on our behalf, without this giving rise to any obligations on us. If the unpaid goods are processed, combined or joined with other products, we retain a proportionate right to the new property so created equivalent: where the goods are processed, our title is to the ratio of the value of our invoice to that of the new product created (gross amount of the invoice including ancillary costs and taxes); where the goods are combined or joined, our title is to the ratio of the value of our invoice to that of the new product created; where the goods are combined or joined, our title is to the ratio of the value of our invoice to that of the other components.
The ordering party hereby assigns to us all accounts receivable which may accrue to him as a result of resale from other buyers or Third Parties. The ordering party shall remain authorised to collect these claims even after assignment. Our authorisation to collect the receivables ourselves shall remain unaffected thereby; however, we undertake not to collect the receivables as long as the ordering party complies with its payment and other obligations in an orderly manner. On request, the ordering party shall inform us of the name of the debtor of the claims that have been assigned to us, all the details we require to collect the debt, provide us with all necessary documents and notify the debtor of the assignment.
If the ordering party infringes any terms of this contract, in particular as regards delayed payments, we reserve the right to reclaim the goods. To enable us to reclaim the goods, the ordering party hereby authorises us irrevocably to have unhindered access to his business premises and store rooms and to recover the goods.
As long as the retention of title exists, the ordering party is not permitted to transfer title in the goods or any products manufactured using the goods or mortgage them without our consent. The conclusion of financing agreements (e. g. leasing agreements) which include the assignment of our reservation rights, are subject to our prior written consent, unless the agreement includes a requirement that the financing institution transfer to us direct our share of the purchase price.
If a distraint order or other lien is placed on the ordering party's assets by Third Parties, the ordering party undertakes to notify us immediately in writing . The ordering party is not permitted to come to agreements with his customers that may infringe our rights.
We undertake to release the collateral at the request of the ordering party at our discretion to the extent that the recoverable value of the collateral exceeds the value of the receivables by more than 20% or its nominal value by more than 50%.
General matters, place of performance and court of jurisdiction
The rights of the ordering party under this contract are not assignable.
If any clause in this contract should be or become ineffective or unenforceable in part or in whole, the remaining clauses are considered to be unaffected.
If the ordering party is an enterprise, the Court of jurisdiction for any and all disputes in connection with the contract shall be Mönchengladbach. This Court of jurisdiction is not exclusive.
The contractual relations are subject exclusively to the laws of the Federal Republic of Germany while the UN Convention on the International Sale of Goods is expressly excluded.