General Terms and Conditions of Sale and Delivery
I - Application
- Our current and future contractual relationships are governed exclusively by our following General Terms and Conditions of Sale and Delivery, unless agreed otherwise in writing.
- Contrary statements or terms and conditions of the buyer are not binding on us, not even if we do not object to them during contract conclusion. Such statements or terms and conditions are only binding if confirmed by us in writing.
II – Offer and Contract Conclusion
- Our offers are non-binding concerning prices, delivery periods and delivery dates. Depictions, drawings, brochures, marketing text, indexes, etc., of our goods and the provided data, e.g., on analyses, specific weights, etc., only represent approximations, unless expressly specified as binding. Changes remain reserved if the function and usability of goods are not affected. Except in the latter case, such changes do not permit the assertion of warranty rights or cancelation.
- Purchase contracts and other agreements require our written confirmation. Our sellers may only broker, but not conclude agreements.
- Agreed delivery periods and dates represent approximations and, where possible, will be met, but are not guaranteed by us.
- Stated quantities represent approximations. Differences of ±10% for safety or filling reasons are contractual for deliveries in removable or fixed tanks or tanker trucks. Such quantitative differences will be fully considered and lower or increase the invoice.
- Our prices are plus VAT.
III – Delivery
- The shipping method and path will be chosen by us. Any additional costs from special shipping requests of the buyer must be borne by the buyer.
- Upon handing over the goods to the carrier, forwarder or other person commissioned to ship the goods, risk will be transferred to the buyer. If shipping is delayed due to circumstances for which the buyer is responsible or if the buyer fails to accept a delivery in time, we may resell the goods at the risk and expense of the buyer and obtain immediate payment of the purchase price after a grace period of 14 days; the earnings from the resale will be deducted from the purchase price required immediately of the buyer. Instead of asserting our rights under Section III(2) Sentence 2, we may also withdraw from the contract or claim damages for non-performance after the grace period expires.
Statt der Ausübung der uns gem. Abschnitt III, Ziff. 2, Satz 2, zustehenden Rechte können wir nach Ablauf der Nachfrist vom Vertrag zurücktreten oder Schadenersatz wegen Nichterfüllung verlangen.
- We will not be in default while the buyer defaults on the fulfilment of obligations, or the delivery of goods or providing of services is delayed or prevented by operational disruptions, failures or delays of our suppliers or shipping companies, traffic obstructions, orders of authorities, e.g., import or export restrictions, or force majeure, such as strikes, lockouts, etc. Such incidents of force majeure permit us to withdraw from the contract. The same right will be available to the buyer.
Dieses Recht steht auch dem Käufer zu.
- Damages of the buyer are excluded, unless for intent or gross negligence of our legal representatives or executives.
- We are not required to deliver goods other than those produced by our affiliates.
- The weight determined by a calibrated scale at the place of departure is binding.
- If goods are transported in our own vehicles, our obligations are limited to vehicle operation. If our employees assist the customer with unloading or discharging and thereby cause damage to the goods or other damage, our employees act at the sole risk of the buyer and not as our vicarious agents. This especially applies to deliveries by third-party transport companies.
- Incoterms 2022 – EXW, ex works apply.
IV – Retention of Title
- We will retain title to our deliveries until all of our claims under the business relationship are settled. For outstanding invoices, retained title serves as collateral for our claims.
- Goods to which we retain title may be processed on our behalf, but without establishing obligations for us. We will be deemed the manufacturer within the meaning of Section 950 of the German Civil Code [Bürgerliches Gesetzbuch (BGB)] and obtain title to the intermediate and finished product at the ratio of the invoice value of the goods to which we retain title to the invoice value of the external goods; the buyer must store these for us in a fiduciary capacity and free of charge. The same applies in case of combinations within the meaning of Section 947 and Section 948 of the German Civil Code of goods to which we retain title and external goods.
- Apart from the above, the same applies to new items created from processing as to goods to which we retain title. Newly-created items will be deemed goods to which we retain title within the meaning of these provisions.
- The buyer may only sell our property at normal conditions in the ordinary course of business and only if the buyer is not in default. Goods to which we retain title may only be sold by the buyer if the claims established by the sale are transferred to us. The buyer may not otherwise dispose of goods to which we retain title.
- Claims of the buyer from the sale of goods to which we retain title are already hereby assigned to us, irrespective of whether the goods to which we retain title are sold without or after being processed and whether they are sold to several buyers. The assigned claims will serve as collateral for the value of the sold goods to which we retain title. If goods to which we retain title are sold by the buyer with goods we do not own or are sold as agreed, the claims from the sale will only be assigned for the value of the goods to which we retain title.
- We revocably authorize the buyer to, on behalf and for the account of the buyer, collect claims assigned to the seller. This collection authorization may only be revoked if the buyer fails to fulfil payment obligations.
- In case of a breach of contract, particularly payment default, by the buyer, we may reclaim the goods to which we retain title. Reclaiming goods to which we retain title only represents withdrawal from the contract if expressly declared by us in writing.
- If the total value of collateral exceeds that of our claims by more than 10%, we must release the collateral at our discretion if requested by the buyer.
- The buyer must inform us without undue delay of any pledge or other impairment of goods to which we retain title or of the claims assigned to us by third parties.
V – Warranty
- The buyer must customarily inspect the goods and their packaging without undue delay upon delivery. Defects and other complaints about missing quantities or incorrect deliveries must be reported without undue delay upon receipt of the goods at their destination. If the buyer does not inspect or report missing quantities or detected or detectable defects of goods, the goods will be deemed accepted.
- Hidden defects must be reported by the buyer without undue delay upon discovery. Complaints about hidden defects must be filed, at the latest, within 5 months of receipt of the goods. This is without prejudice to the statute of limitations. The burden of proof of a hidden defect is on the buyer.
- Reported goods may only be returned with our express prior permission.
- If legitimate complaints are filed in time, we may exchange, take back or grant a discount for reported goods. Damages of the buyer are excluded, unless for intent or gross negligence of our employees.
Schadensersatzansprüche des Käufers sind ausgeschlossen, es sei denn, sie beruhen auf Vorsatz oder grober Fahrlässigkeit unserer Mitarbeiter.
VI – Liability
- Our contractual and legal liability (e.g., for non-performance, inability of performance, fault during or before contract conclusion, breaches of contract, defects of title, unlawful acts, compensation of joint and several debtors, etc.) is, conditional on Sentence 2, limited to intent and gross negligence of our legal representatives and vicarious agents. We will only be liable for negligence of our legal representatives, executives or vicarious agents in case of a violation of an essential contractual obligation.
- Any of form of usage consultation is provided to the best of our knowledge and non-binding. Our liability for misinformation is limited to gross negligence and intent. Furthermore, we are not liable for goods’ suitability for the purposes intended by the buyer, unless the intended purpose is expressly part of the contract. How products delivered by us are used is decided at the responsibility of the buyer. Any liability for the quality or suitability of a product is, irrespective of the type and amount of damage, limited to the value of the goods delivered by us and processed by the buyer.
VII – Payment
- Our invoices must be paid in cash without deduction within 14 days of the invoice date.
- Checks are only accepted under exclusion of our liability for on-time and proper submission and rejection.
- If in default, the buyer must pay interest in accordance with Section 288 of the German Civil Code as of the due date. Further damages remain reserved.
- In case of payment difficulties of the buyer, especially including in case of default, returned checks or learning of other circumstances that may draw the buyer’s credit standing into question, we may require advance payment for further deliveries, immediate payment of any outstanding—including deferred—invoices, and cash payments or collateral. Furthermore, we may prohibit the resale or processing and request the return or transfer of possession of delivered goods to which we retain title. In such cases, the buyer already hereby agrees to our removal of the delivered goods.
- The buyer waives the assertion of rights of retention from previous or other transactions under the current business relationship. Counterclaims may only be offset against claims that are acknowledged by us and due or are legally established.
- We may assign claims against buyers based in Germany or EU member states for refinancing. When concluding the contract, the buyer will be informed whether claims will be assigned.
VIII – Other Provisions
- All legal relationships and acts between us and the buyer are governed exclusively by the law of the Federal Republic of Germany under exclusion of the valid United Nations Convention on Contracts for the International Sale of Goods.
- For our deliveries, the place of performance is the shipping site and, for payments, Bitterfeld, Germany.
- The exclusive place of jurisdiction is the location of the competent courts of our registered office, including in relation to checks. We may also sue at the competent court of the registered office or main branch of the buyer.
- Should any of the above clauses be or become ineffective, they must be replaced with provisions that most closely achieve the economic aims of the contract in appropriate consideration of the interests of both parties. The effectiveness of the remaining provisions will not be affected.
27 June 2022