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General Conditions of Sale and Delivery (Terms and Conditions)

Application of These General Conditions of Sale and Delivery
1. Our deliveries, services, and offers are made solely on the basis of these General Conditions of Sale and Delivery, even if we do not refer to them directly in future transactions.
2. Deviating terms and conditions of the contractual partners only become a component of the contract insofar as they do not contradict our Terms and Conditions and we expressly recognise them in writing.

II. Offers, Orders, Information about Samples and Quality
1. Offers are subject to change and non-binding. They are ex works if nothing else is indicated.
2. Orders are only binding for us if we confirm them or fulfil them by delivery the goods; oral ancillary agreements only if they are confirmed by us in writing.
3. Analysis data and information about other quality characteristics correspond to the best of our knowledge to the current status of knowledge and our development but do not represent an agreement on qualities.
4. Measures, weights, samples, or other performance data are only binding if they are expressly agreed in writing.

III. Prices
1. Insofar as no price has been agreed for the goods, the calculation is done pursuant to our prices applicable on the day of shipment. The value-added tax and, if applicable, other taxes or statutory fees will be charge separately at the rate valid on the day of shipment.
2. We are entitled to demand reimbursement for expenses necessary for the delivery in addition to the agreed price or the price applicable on the day of shipment if these arise after conclusion of the contract, regardless of whether they are on the on the basis of statutory or other provisions or actual objective facts. These include in particular import or export duties (e.g. customs, import/export levies, and taxes), loading and unloading expenses, freight expenses, and shipping fees. In this case the Buyer is entitled to withdraw from the contract within 14 days of being informed of the price increase – at the latest, though, 2 days before the agreed delivery date.
3. If the delivery of duty unpaid or untaxed goods is agreed, all public fees are to be borne by the Buyer. The recipient is to present a valid permit at the latest at the time of delivery if applicable. The Buyer is liable regardless of his fault for all public levies that we must pay on account of improper use of the goods.

IV. Delivery, Delivery Arrears, and Force Majeure
1. Delivery dates are only binding in the event that they are expressly confirmed in writing and even in this case they are subject to the condition of correct, timely, and complete delivery by our suppliers of the raw materials and auxiliary materials necessary for manufacturing of the goods.
2. We are entitled to make partial deliveries to a reasonable extent.
3. We assume no liabilities for delivery arrears on account of a force majeure or other non-preventable event that makes our delivery impossible or significantly more difficult and for which we are not culpable. These include in particular labour disputes, disturbances in operations, official measures, the lack of means of transportation, traffic hindrances, war, riot, etc., also if they arise at our suppliers. In events of this kind we are entitled to limit or interrupt delivery for the duration of the effects or withdraw from the contract. The Buyer can withdraw from the contract if it proves that the delivery is no longer of interest to it after the hindrance is gone.
4. We will inform the Buyer of hindrances to delivery of the kind named above without delay. If we exercise our right to withdrawal agreed above, we will refund payments already made by the Buyer without delay.

V. Containers, Filling
1. Loaned containers are to be returned to us completely empty free of charge to our warehouse without delay after the agreed loan duration. They may not be used for other purposes or soiled. The Buyer is liable for loss or damage to loaned containers in his custody even if he has no culpability. Loaned containers that are not returned in a timely or orderly manner may be invoiced to the customer at the procurement cost.
2. In the event of delivery by means of tank lorry, the Buyer is to ensure ability to accept at the agreed delivery time. It is liable for all costs and damages that arise for us on account of delayed emptying.
3. Loaned tank cars are available customers at no charge for rent for the return journey and for a maximum of 48 hours for unloading. In the event of late return, the Buyer is to pay the market rental rate for the duration of the deadline overrun. The return freight for empty tank cars is to be borne by the Buyer.
4. Containers provided by the Buyer (including tank cars and tank lorries) are to be delivered to our filling equipment ready to be filled at no charge. We are not obligated to inspect these containers for their suitability or cleanliness. Use occurs at the risk of the Buyer. We are not responsible for contamination of the goods on account of dirty containers of the Buyer.

VI. Delivery, Acceptance
1. Any complaint on account of external qualities (packaging, weight, etc.) is excluded after acceptance of the goods by the shipper or other party commissioned by the Buyer.
2. The weight determined and calculated by us is authoritative unless the Buyer demands a weight check at its expense. A complaint about weight deviation can only be made immediately after receipt of the goods if it is determined immediately in a faultless manner – insofar as possible by an official record.

VII. Deadline for Acceptance, Acceptance Arrears
1. Insofar as nothing else was expressly agreed when the order is made, the Buyer is to accept the ordered goods within 14 days after the delivery date indicated in the order confirmation.
2. If the Buyer does not accept the goods ordered by us in a timely manner or is in delivery arrears for other reasons, we are entitled to deliver the goods to the buyer at its expense and risk or store them at its expense and invoice them as delivered or deny delivery. Without prejudice to that, we are entitled to demand reimbursement for the damages arising for us on account of the delay from the Buyer.
3. The risk of accidental deterioration or accidental loss is transferred to the Buyer with the beginning of acceptance arrears.

VIII. Transfer of Risk
1. The risk of accidental deterioration or accidental loss is transferred to the Buyer as soon as the shipment is handed over to the person carrying out the transportation or has left our warehouse for the purpose of shipment. Shipment occurs at the risk of the Buyer even in the event of carriage paid delivery.
2. If shipment becomes impossible for reasons for which we are not responsible, the risk of accidental deterioration or accidental loss is transferred to the Buyer with the announcement of readiness to ship.
3. If we follow shipping instructions issued by the customer, we are acting for account and risk of the Buyer without our own liability.

IX. Warranty and Liability
1. The buyer has the duty to inspect the goods directly after receipt. Obvious defects are to be announced immediately and hidden defects are to be announced without delay after their discovery. There is no liability whatsoever for goods with an obvious defect or after discovery of a hidden defect sold or subject to additional processing without our agreement.
2. In the event of just complaints, the Buyer has a claim to replacement delivery, or, according to our choice, a reduction in the purchase price to be demanded by it. If the replacement delivery fails, the Buyer can demand a reasonable reduction in the purchase price or withdraw from the contract according to its choice. The Buyer is not entitled to further going claims.
3. Insofar as we have not excluded the claim for reimbursement of expenses of the Buyer pursuant to section 478 para. 2 of the German Civil Code [BGB] by granting a settlement with the same value, in the event of further sale of the goods to a consumer the Buyer is obligated to deny the remedy pursuant to section 439 para. 3 BGB if the conditions there are not met. In the event of further sale to a business person, the Buyer is also to obligate this party in the manner above. In the event of a breach against the duties above, we are not obligated to reimburse those expenses that would not have arisen in the event of just denial of remedy pursuant to section 439 para. 3 BGB.
4. Insofar as we are obligated to pay damages, our liability is limited to reimbursement for reimbursement of typically foreseeable damages that do not include indirect and consequential damages including lost profits.
5. The exclusions of liability and limitations of liability above do not apply to claims for damages on account of gross culpability (intent or gross negligence), in the event of the breach of cardinal duties material to the contract, and in the event that a characteristic expressly promised in writing is missing.
6. Without prejudice to the duty to inspect and make notice of defects pursuant to no. 1 above, the claims of the Buyer become time barred at the latest one year after dispatch of the goods insofar as there is not a compulsory longer statute of limitations period.
7.  If the Buyer is not a business person and not a legal entity under public law or a special fund under public law, the above buyer’s duties, exclusions of liability, and limitations of liability are only applicable insofar as no compulsory statutory regulations contradict them. In particular, the Buyer who is not a business person and not a legal entity under public law or a special fund under public law is entitled to the statutory warranty period.

X. Payment
1. Insofar as nothing else is expressly agreed in writing, payments are due within 14 days of the invoice date without deduction. In the event that the payment period is exceeded, we will claim interest in the amount of typical bank debit interest, at a minimum in the statutory amount (section 288 BGB), with reservation of greater damages.
2. In the event of payment arrears and just doubts about the ability to pay or creditworthiness of the Buyer, we are authorised, without prejudice to our other rights, to demand securities or prepayments for outstanding deliveries and make all claims from the business relationship due immediately.
3. The Buyer is only entitled to set off – business persons and legal entities under public law or special funds under public law are furthermore only entitled to claim a right of retention – if the counterclaim is undisputed or has been established by court of law.

XI. Retention of Title
1. Until fulfilment of all claims against the Buyer to which we are entitled currently or in the future – regardless of legal basis – we retain ownership of the delivered goods (goods subject to retention of title).
2. The Buyer is entitled to sell the goods subject to retention of title in the scope of regular business operations until there is a revocation of this right which can arise in the event of an important reason. Payment arrears of the Buyer are a particular important reason for the revocation. There is not a sale in regular business operations if the customer of the Buyer demands a prohibition of assignment with regard to the Buyer’s asking price.
3. In the event of allowable further sale, the Buyer now assigns to us the claim it acquires through the sale for securing our claim. We accept these assignments. The Buyer is entitled to collect the assigned claims as long as it complies with its contractual duties to pay us. Otherwise, we are entitled to the collected amounts and they are to be stored by the Buyer separately from its other assets and turned over to us without delay. The Buyer is also not authorised to assign these claims to a factoring company for collection of receivables unless the factoring company is simultaneously obligated to bring about the counter-performance in the amount of our share of the claim directly to us as though our claim against the Buyer still existed.
4. In the event of mixing or processing of the goods subject to retention of title with other objects, we are entitled to co-ownership of the item arising on account of the mixing or processing in the proportion of the value of the goods subject to retention of title to that of the new item. In this case, the above no. 2 and 3 apply in the corresponding manner.
5. Exercise of the retention of ownership does not mean withdrawal from the contract.
6. The Buyer is to inform us in writing of all seizures of third parties of goods and claims belonging to us with all information necessary for Action Against Execution pursuant to section 771 of the German Code of Civil Procedure [ZPO],
7. If the value of the securities exceeds our claims by more than 20%, we will release securities according to our choice to this extend upon demand of the Buyer.

XII. Place of Performance and Legal Venue
1. Place of performance for all reciprocal performances is Dorsten.
2. The legal venue for all disputes from the business relationship is Duisburg if
– the Buyer is a business person, legal entity under public law, or a special fund under public law,
– the Buyer does not have any general legal venue in Germany or has moved his residence or regular place of about abroad after conclusion of the contract, or
– the residence or regular place of abode of the Buyer is unknown at the time suit is filed.

XIII. Applicable Law, Partial Invalidity
1. The laws of the Federal Republic of Germany are solely applicable for the entire legal relationship between us and the Buyer.
2. Should a provision of these Terms and Conditions or the contract with the Buyer be or become invalid or infeasible, this shall not affect the validity of the remaining provisions of these Terms and Conditions or the contract. In the place of the invalid or infeasible provision should come that provision to which the parties would have agreed had they had knowledge of the invalidity or infeasibility in order to come as close as possible to the economic purpose of the invalid or infeasible provision.

 

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