General Terms and Conditions of Sale and Delivery of AEROCHEMICA Dr. Deppe GmbH
1 GENERAL – SCOPE OF APPLICATION
(1) Our (=seller’s) terms and conditions apply exclusively; any terms and conditions of our customers (=buyers) which conflict with or deviate from our terms and conditions and which we do not expressly recognize in writing are not binding on us, even if we do not expressly object to them in the individual case.
(2) These terms and conditions apply exclusively to entrepreneurs, legal persons under public law or special funds under public law as defined by section 310(1) of the German Civil Code [Bürgerliches Gesetzbuch – BGB].
(3) They also apply to all future transactions with the buyer insofar as business of a related nature is involved.
2 CONCLUSION OF CONTRACT AND TERMS OF PAYMENT
(1) Our offers are without engagement in respect of price, quantity, delivery time and availability. We reserve the right to over- or undersupply quantities by up to 10% of those ordered. Transactions and agreements become effective for us only once we have confirmed them in writing. Unless a fixed price has been agreed in the individual case, our offers are subject to reasonable price adjustments due to wage, material or distribution costs for orders shipped at least 2 weeks after conclusion of the contract. The buyer will be informed of the price adjustment immediately.
(2) Unless otherwise agreed, payments must be made strictly net to us in advance. Orders are shipped only after the seller has received payment, unless otherwise agreed in the individual case. Value-added tax is added to our prices at the applicable statutory rate. Unless otherwise stated in the confirmation of order, our prices apply ex works. Deviations therefrom require the seller’s confirmation in writing.
(3) If payment in advance is waived in the individual case and the buyer falls into arrears with settlement of the payment, the seller reserves the right to change the terms of payment to payment in advance for all remaining shipments. The customer may exercise the right to withhold payment only if it has a counter-claim based on the same contractual relationship. A demand for payment may be offset only with an uncontested or legally established claim. If payment is delayed, interest may be charged at the standard bank rate.
3 SHIPMENT
When the goods are shipped to the buyer, the risk of accidental loss or deterioration of the goods is passed to said buyer on dispatch to the buyer, at the latest when they leave the factory or warehouse. This applies irrespective of (i) whether the goods are dispatched from the place of performance or (ii) which party bears the costs of freight. The type of packing lies at our discretion. There is no claim for damages due to inadequate packing.
4 DELIVERY
(1) The delivery dates named by the seller to the buyer are non-binding. If, in contrast to the above, a fixed delivery date is agreed, it is contingent on the seller itself being supplied. Insofar as, due to non-availability of the supply, delivery is delayed and cannot be performed by the new delivery date either, we may withdraw from the contract completely or partly; we shall immediately refund any consideration (in the form of payment of the purchase price) already effected by the buyer. Non-availability of a supply is the case, for example, if (i) one of our suppliersactive ingredient or the packing material. The exclusion of liability does not apply to damage defined under section 309 no. 7 a) and b) of the German Civil Code [Bürgerliches Gesetzbuch – BGB].
6 RETENTION OF TITLE
(1) Until full settlement of all the seller’s current and future claims vis-à-vis the buyer arising from a contract of sale and an ongoing business relationship (secured claims), the seller reserves the right to retain title to the items sold.
(2) The goods subject to retention of title may be neither pledged nor assigned as security to third parties until full settlement of the secured claims. The buyer shall immediately notify the seller in writing if and to what extent third parties seize goods belonging to the seller. However, the buyer may use the reserved goods and resell them in the ordinary course of business provided that it is not in arrears with its payment obligations. As a precaution, the buyer assigns to the seller claims vis-à-vis its business partners arising from the sale in the final invoice amount (including value-added tax). The seller accepts said assignment. The buyer of the reserved goods shall disclose to third parties that it has acquired the item from the seller subject to the right of retention.
(3) If the buyer breaches the contract, e.g. by failing to pay the purchase price due, the seller may, under the statutory provisions, withdraw from the contract and/or, based on its right to retain title to the goods, demand that they be handed over. This demand does not simultaneously constitute a declaration of withdrawal; instead, the seller may simply demand the handover of the goods and reserve the right to withdraw from the contract. If the buyer fails to pay the purchase price due, the seller may assert these rights only if the buyer had previously been set a reasonable deadline that it did not meet or such deadline is unnecessary under the statutory provisions.
(4) The buyer may resell and/or process, combine or mix the reserved goods. In this case, the following applies:
(a) Retention of title extends to the products – at their full value – arising from the processing, mixing or combining of our goods, with the seller being deemed as the manufacturer under section 950 of the German Civil Code [Bürgerliches Gesetzbuch – BGB]. If third-party rights continue to exist when the goods are processed, mixed or combined, the seller acquires joint title thereto in proportion to the accounting values of the processed, mixed or combined goods. Otherwise, the same applies for the products arising as for the reserved goods supplied.
(b) For security, the buyer, already at this point, assigns to the seller in full or in the amount of any portion of our joint title to claims under the foregoing paragraph against the buyer’s customer arising from the sale of the items. The seller accepts such assignment. The buyer’s obligations stipulated in sub-section 2 also apply to the assigned claims.(c) The buyer may collect the claim as long as it, itself, is neither overindebted under insolvency law nor insolvent or threatening to become so. In any event, the right of collection ends if (i) the buyer fails to meet its payment obligations vis-à-vis the seller when they fall due, (ii) the seller has therefore set the buyer a payment deadline and (iii) the buyer has not settled the claims due in full by the deadline.
(d) The buyer shall disclose to the seller the assigned claims and the respective debtors thereof before any resale. At the seller’s request, the buyer shall furnish all information necessary for the collection, hand over thehas failed to supply us in time, (ii) we have entered into a matching cover transaction, or (iii) other disruptions have occurred in the supply chain (e.g. due to force majeure) or we, in the individual case, have no procurement obligation. If delivery is delayed, the buyer shall set the seller a reasonable deadline of at least 6 weeks. After fruitless expiry thereof, the buyer may withdraw from the contract; further claims are precluded.
(2) If the customer does not take or call off the goods within an agreed and reasonable period, we may, upon fruitless expiry of a reasonable deadline set by us, withdraw from the contract and demand reimbursement of expenses from the buyer for the (i) unsuccessful offer and (ii) retention and storage of the goods. Furthermore, we may assert a lump-sum claim for damages amounting to 15% of the contract value. The buyer may prove that no damage or reduction in value has occurred at all or that it is significantly lower than the lump sum.
(3) The seller may withdraw from the contract insofar as it is not at fault for the non-delivery of an item which it had previously ordered in a corresponding purchase contract, using due commercial care. The seller will (i) inform the buyer immediately that the item will not be available in time, and if said seller therefore wishes to withdraw, (ii) exercise such right immediately. Having been notified to this effect by the seller, the buyer may also withdraw from the contract. No matter which party withdraws, the seller will refund the consideration immediately.
(4) We are not (i) obliged to monitor the wording of customer labels or (ii) liable in any way for the information contained therein. The customer is the manufacturer (no matter whether we perform contract filling or development) and is responsible for wording and layout.
5 COMPLAINTS AND LIABILITY
(1) The customer shall examine the goods carefully immediately on taking delivery thereof. Complaints will be considered only if (i) they are made immediately in text form, (ii) vouchers and patterns are submitted and (iii) the invoice number and coding on the packing are provided. In the case of hidden defects, the written complaint must be sent immediately on identification thereof, at the latest within 3 days of the defect becoming recognizable. The burden of proof that a hidden defect is involved lies with the buyer. Rejected goods may be returned only with the seller’s express agreement. The seller will, at its discretion, deal with duly raised and justified complaints by reducing the price, exchanging the goods or taking back the rejected goods against reimbursement of the purchase price.
(2) Application, use and processing of the purchased goods are the sole responsibility of the buyer. The seller’s technical advice, be it given verbally or in writing, is provided only as non-binding information – also in respect of any third-party property rights – and does not release the buyer from its obligation to examine the product for its suitability for the intended processes and purposes. However, any liability on the part of the seller is limited to the value of the goods supplied by us. Any further liability on the part of the seller, on whatever legal grounds, including damages and consequential damages, is precluded. Claims for damages by the buyer arising from the breach of secondary contractual obligations by the seller are precluded.
(3) We develop our products to the best of our knowledge and belief but accept no liability for them. In the case of contract filling, liability is precluded in respect of the durability, product compatibility and storability of therelevant documents and notify the debtors of said assignment.
(e) If the realizable value of the securities exceeds the seller’s claims by more than 10%, the seller will, at its own discretion, release securities at the buyer’s request.
7 PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW AND SEVERABILITY CLAUSE
(1) The place of performance for all deliveries and payments is Kempen. The place of jurisdiction for both is Krefeld, irrespective of the amount in dispute and including matters relating to bills of exchange and cheques.
(2) The law of the Federal Republic of Germany applies; the application of the UN Convention on Contracts for the International Sale of Goods is precluded.
(3) If a difference in meaning arises between the two language versions of these terms and conditions, the German text is binding.
(4) Should individual provisions of these terms and conditions be completely or partly invalid, the validity of the other provisions or the other parts thereof will not be affected. An ineffective provision is deemed to be replaced by a provision that comes closest to the economic purpose of the ineffective provision and is effective.
AEROCHEMICA
Dr. Deppe GmbH
Am Selder 35a
47906 Kempen
Tel.: +49 2152 80 97 - 100
Fax: +49 2152 80 97 - 200
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