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Terms and conditions of sales and delivery (international trade with chemicals)

Version from November 11 2020

Praembel

We deliver to businesses as defined in Article 14 of the German Civil Code (BGB), public-law legal entities or public-law special funds only on the basis of the following terms and conditions of sale and delivery. Other terms and conditions – in particular terms and conditions of purchase of the customer – do not apply unless they have been expressly confirmed by us in writing.

Section 1 Offer and acceptance

a) Our quotes are subject to change. Orders are binding on us only if we have confirmed them in writing or if we have begun executing them. To be effective, any changes, additions and oral side agreements must be confirmed in writing. This also applies to the waiver of the written form requirement.

b) Supplementary terms used to describe the goods such as "approximately", "as previously delivered", "as usual", or similar expressions refer only to the quality or quantity of the goods and not to the price. Where such expressions are used in orders, we will interpret them accordingly and any confirmation will also be made in this sense.

c) Quantity indications are deemed approximate only. Safety-related or filling method-related deviations of +/- 10% are deemed to conform with the terms of the agreement. Such deviations will be fully reflected in the invoice amount which will be reduced or increased accordingly.

Section 2 Purchase price and payment

a) Our prices are quoted exclusive of VAT at the applicable rate. Prices are calculated based on the quantities and weights specified by us or our suppliers. The calculation can, however, be made based on the volumes or weights specified by the recipient if this is done with the help of calibrated instruments and the goods have been transported at our risk.

b) Unless agreed otherwise in writing, the purchase price is payable in full upon delivery of the goods.

c) From the due date, we reserve the right to charge late-payment interest of 8 percentage points above the base rate.

d) This is without prejudice to our right to assert further damages in the event of a default.

e) Bills of exchange and cheques are accepted only subject to clearance; the payment will be deemed to have been made only when the cheque has cleared. The standard bank charges shall be borne by the buyer.

f) The buyer may offset only undisputed or legally established claims against our purchase price claim. The buyer is entitled to exercise the right of retention only if his claim is based on the same contractual relationship.

(g) If the buyer is in arrears with the payment of one of our invoices, and the amount involved cannot be considered to be negligible – that is, if it is equal to or greater than 10% of the total invoice amount for one month calculated as an average of the 12 months before the buyer fell into arrears – all claims arising from the entire business relationship will become immediately due, irrespective of any acceptance of bills of exchange. We are then entitled to demand cash payment in advance of making any further deliveries. If the payment delay is not remedied within a reasonable grace period, we will then be entitled to rescind the contact or claim damages for delay in performance. This applies, in particular, to any subsequent transactions which have been agreed but not yet completed. If we become aware of circumstances which indicate that the customer's financial standing has deteriorated we will be entitled to demand payment in cash before delivery, even if we have previously agreed otherwise, and declare any outstanding amounts immediately due and payable.

Section 3 Deliveries

a) The agreed delivery lead times and dates are always to be deemed approximate, unless a fixed date or period has been expressly agreed.

b) In the case of deliveries that do not involve our operations (drop shipping) the delivery will be deemed to have been made on time when the goods leave the supplier's premises in time to reach their destination, allowing for the usual journey time.

c) Events of force majeure – including public-law restrictions, strikes and lockouts – entitle us to rescind the agreement. In such cases, any liability for damages due to a breach of contractual obligations is excluded. This also applies to late deliveries by our primary suppliers for which we bear no responsibility. We are obliged to inform the buyer of such events without undue delay. In these cases, the buyer is also entitled to rescind the contract.

(d) If we are in default of delivery, the buyer shall give us additional time to make the delivery and, if this additional time period passes to no effect, to rescind the contact. The buyer will be entitled to demand damages for a breach of contractual obligations only if the additional time has passed to no effect for reasons attributable to the intentional or grossly negligent conduct of our statutory representative or one of our agents.

Section 4 Delivery and acceptance

(a) Transport risks shall always be carried by the buyer from the point of delivery, including deliveries made on a carriage-paid basis, unless we transport the goods with our own vehicles from our plant or warehouse.

(b) Where the goods are collected from the point of delivery, the buyer or his designated representatives shall assume responsibility for vehicle loading and compliance with applicable laws and regulations governing the transport of hazardous goods.

(d) Unloading and storage of goods is always the responsibility of the buyer.

(e) In the case of deliveries made using tank vehicles, the buyer shall be responsible for ensuring the proper technical condition of his tanks or other storage containers and arrange for the connection of his filling lines to the storage facility on his own responsibility. Our responsibility is limited to the operation of on-board equipment.

(f) Where our employees provide additional assistance with unloading or tank drainage and in so doing cause damage to the goods or other damage, then these persons will be deemed to be acting at the sole risk of the buyer and not as our vicarious agents.

(g) The foregoing provisions shall apply mutatis mutandis to the delivery by a third-party transport company, unless it could be inferred that their conduct falls under the liability of the buyer. The third party's liability remains unaffected.

Section 5 Packaging

a) Where we use rented containers to deliver goods, these containers shall be returned to us empty and in good condition no later than 30 days from the date of delivery to the buyer’s address at the buyer’s own risk and expense, or where possible, reloaded onto our delivery vehicle against receipt.

b) If the buyer does not fulfil the obligations specified under a) within the period specified, we will be entitled to charge a reasonable fee for the time exceeding 30 days and to demand the replacement value, which will be set off against the aforementioned fee after giving the buyer additional time, and this time passes to no effect.

(c) The attached labels and markings may not be removed. The loaned packaging may not be exchanged or filled with other materials. The buyer shall be liable for any impairment, swap or loss, irrespective of whether he is at fault. This is based solely on our findings upon receipt of the packaging at our premises. Unless agreed in advance in writing, the buyer is not permitted to use the loaned packaging as storage containers or pass it on to third parties.

d) In case of deliveries in tank-wagons, the buyer shall ensure on his own responsibility to have the tanks emptied as quickly as possible and returned to us or to the specified address. If the buyer is responsible for having the tank-wagons standing at his premises for an extended time, he shall bear the tank-wagon fee incurred.

Section 6 Retention of title

(a) We retain title to the supplied goods until all our current and future claims against the buyer have been settled in full. This also applies to payments for specific claims. For open accounts, the retention of title serves as collateral for the outstanding balance. The title is transferred to the buyer no later than on the date on which we no longer have any outstanding claims against him.

(b) As long as the buyer meets his obligations to us in accordance with the terms of the contract, he shall be entitled to use the reserved goods further during the ordinary course of business.

(c) If the buyer fails to meet his payment obligations even after being given additional time to do so, we will be entitled to reclaim the reserved goods without setting an additional grace period or giving a formal rescission notice. We are entitled to enter the buyer's premises if need be to reclaim the reserved goods.

(d) Any processing or modification of the reserved goods will take place on our behalf without giving rise to any obligations on our part. We are manufacturers within the meaning of Article 950 of the German Civil Code (BGB) and acquire title to intermediate and finished products equivalent to the proportion of the invoice value of our reserved goods to the invoice values of third-party goods; this means that the buyer holds reserved goods in trust on our behalf free of charge. This also applies mutatis mutandis to the mixing and combining of reserved goods with third-party items under Articles 947 and 948 of the German Civil Code (BGB).

(e) By way of security to the satisfaction of all our claims, the buyer hereby assigns to us any claims against third parties arising from the resale. If the buyer sells goods in which we have only acquired partial ownership in accordance with letter d), the buyer shall assign to us only the portion of the claim that corresponds to the proportion of the invoice amount attributable to the reserved goods. Where the buyer uses the goods under a contract for work and services (or a similar agreement), he shall assign his remuneration under the contract to us in an amount equivalent to the invoice value of our goods used for this purpose.

(f) The buyer is entitled to collect payments for claims arising from the resale or use of reserved goods in his normal course of business. If we have specific reasons to believe that the buyer cannot or will not properly meet his obligations to us, the buyer is obliged to notify his customers of the assignment, abstain from any disposition regarding the claims, provide us with the information about the condition of our reserved goods and of the claims assigned to us and to provide us with all the documents necessary to assert of our rights against the customer. The buyer shall notify us immediately of any attempts by third parties to seize the reserved goods.

g) We shall release the collateral provided to us by the buyer at his request, provided that the value of the collateral exceeds the total value of our claims by more than 10%.

Section 7 Warranty rights, inspection and reporting obligations of the buyer

(a) If the goods have a defect for which the seller is responsible, the seller shall provide corrective action, during which the buyer is not entitled to demand a reduction in price or rescind the agreement, unless the seller is entitled to refuse corrective action by law. The buyer shall grant the seller a reasonable period for corrective action. As part of the corrective action, the seller may, at his discretion, either remove the defect or supply a new product. During the corrective action process, the buyer may not demand reduction in the price or rescind the contract. If the corrective action fails, the buyer is entitled to demand reduction in the price or rescind the contract.

Claims under the warranty can be accepted only under the following conditions: 

1. The buyer shall examine the goods and their packaging upon delivery without delay, in conformity with standard commercial practice. If the goods are delivered in several units, the buyer shall also check the labels on each delivered unit for conformity with his order. In addition, the buyer shall ensure that the condition of the goods conforms to the terms of the contract by taking samples before draining the tank.

2. The buyer shall report any defects identified during the examination promptly and in writing.

3. If the buyer fails to perform the required inspection or to report detected or detectable defects immediately, he will lose his warranty rights with respect to the detected or detectable shortcomings. The same applies to an inadvertently wrong delivery, including a defect so significant that approval/acceptance of the goods by the buyer can be effectively ruled out.

4. In the case of hidden defects, the buyer shall report the defect immediately upon discovery. Otherwise, the goods will be deemed to have been accepted. Complaints regarding hidden defects shall be excluded eight weeks after receipt of the goods. This is without prejudice to the right to demand a replacement due to wrong delivery.

(b) In the case of material defects, we are liable for damages or reimbursement of the costs incurred as set out in Section 8.

(c) Any advice given by employees of HCH Highchem Hamburg GmbH is given in good faith. Nonetheless, it shall not give rise to a contractual relationship or ancillary obligation under the purchase agreement.

Section 8 Liability for damage

a) We shall be liable for damage caused to the legal assets of the buyer as a result of defects of the purchased items, wrong delivery or packaging defects as follows:

1) Where the damage could have been avoided if the buyer had met his obligation to inspect the delivered goods on receipt, any type of liability on our part shall be excluded, unless the damage is attributable to intentional behaviour of our statutory representatives.

2) If the damage occurs despite the buyer's compliance with inspection requirements, we shall be liable only for intentional or grossly negligent breach of contract.

b) We shall be held liable for damage other than specified above – irrespective of the basis of liability such as unlawful acts or breach of contractual obligations – only if caused by our intentional or grossly negligent conduct or that of one of our vicarious agents.

c) We are not liable for the suitability of the goods for the purposes intended by the buyer. Where we provide application-specific advice, information or make recommendations, etc., we shall be liable for incorrect advice, information or recommendation only if provided in writing.

d) All claims within the meaning of Section 8 lapse one year after the action that has caused the damage has occurred, excluding liability in tort.

e) The foregoing is without prejudice to our liability under the German product liability Act.

Section 9 Place of jurisdiction, applicable law, severability clause

(a) The parties hereby agree that the place of performance and jurisdiction for any claims shall be the registered office of the seller. The seller also has the right to bring a claim against the buyer at his general place of jurisdiction. The business transactions between the seller and the buyer are subject exclusively to the laws of the Federal Republic of Germany.

(b) The applicable law is that of the Federal Republic of Germany to the exclusion of the UN Convention on the Sale of Goods, as amended (United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980).

c) If any of the above provisions is or becomes invalid, it shall be replaced by a provision that approximates as closely as possible the economic purpose of the contract, taking into consideration the interests of both parties.