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Version: 21.06.2016
1. Scope of terms and conditions
a. Our general sales and delivery conditions solely apply. Any contradictory conditions held by the Contract Partner or conditions which deviate from our own general sales and delivery conditions shall not be recognised by us. We will only be bound by such in individual cases insofar as we have explicitly agreed in writing. Our terms and conditions also apply if we unreservedly supply the Contract Partner in the knowledge of the Contract Partner’s contradictory or deviating conditions.
b. Our terms and conditions also apply to all future business relationships between us and the Contract Partner.
2. Making offers and orders, written form
a. Our offers are non-binding and subject to alteration, unless we have explicitly labelled them as binding. The Contract Partner may not make the offer documents available to third parties, regardless of whether we have marked them as confidential.
b. Offers, agreements, notifications and recommendations from our employees, as well as other contractual ancillary agreements, reservations, amendments and supplements must be made in writing in order to be valid. This equally applies to the withdrawal of the requirement for written form. The first orders are therefore only considered as accepted once this has been confirmed by us in writing or once they have been carried out.
3. Details on samples and quality
To the best of our knowledge, all details and analyses of quality given represent our latest developments and expertise. Samples and templates represent the current average outcome of goods, unless a special procurement agreement is made for a specific period. Other performance data is only binding if explicitly agreed to in writing. Additional costs resulting from the customer’s desire for non-standard packaging are to be borne by the buyer.
4. Prices
If no price has been agreed upon for the product, the price shall be billed on the basis of our applicable prices on the day of shipping. VAT is billed separately at the rate applicable on the day of shipping. We reserve the right to amend prices, even upon concluding agreements or fixed price agreements, if and when the fiscal requirements for the petroleum industry (e.g. petroleum tax, used oil levy etc.), tariff-bound freight, raw material prices and other costs change.
5. Delivery, delays in delivery
a. Only delivery dates/deadlines which are confirmed in writing are binding for us. These are nonetheless subject to the reservation that the correct, on-time and complete delivery of the required raw and ancillary goods required by the manufacturer is made
b. We are absolved of our obligation to supply if we have concluded a congruent cover transaction with the relevant suppliers and we are therefore not liable for incorrect or late deliveries. We will notify the Contract Partner of any non-delivery immediately and withdraw from the rights resulting from the cover transaction due to incorrect or late delivery.
c. The Contract Partner must cooperate in the acceptance and notify us promptly of any difficulties with delivery conditions.
d. If the delivery/collection is delayed for reasons, for which the Contract Partner is responsible, the Contract Partner shall bear the costs for storage and the risk of any accidental damage or degradation.
e. We are only liable in accordance with the statutory provisions if a delay on our part is due to an intentional or grossly negligent breach of contract on our part or if we are culpable of violating a significant contractual obligation. Insofar as a delay in delivery is not due to an intentional contractual infringement on out part, our liability for compensation is limited to foreseeable, typically-occurring damages.
f. Furthermore, following prior written notice from the Contract Partner, we be liable in the event of delays in delivery for each completed week of arrears with a lump sum reimbursement for arrears to the amount of 3% of the value of the purchase price, albeit no more than 15% of the value of the purchase price, unless it can be reasonably concluded from the circumstances of the particular case that the buyer has suffered no loss.
6. Force Majeure
a. In cases of force majeure, in particular strikes, lockouts, unforeseeable operational disruptions, unavoidable raw material shortages and other unavoidable events for which we are not responsible, we may restrict or cancel the delivery for the duration of the event’s effects. In the event that a case of force majeure lasts for more than 2 months or leads to a long-term inability to deliver, we may also fully or partially withdraw from the contract. This also applies if our suppliers, who are working for us as vicarious agents, are fully or partially released from their obligation to supply due to force majeure. We shall inform the Contract Partner immediately of a case of force majeure. In such cases, we are entitled to deliver within a reasonable period of time corresponding to the delay. The Contract Partner may, after 4 weeks from the start of the event, set an appropriate subsequent deadline, with the condition that following this subsequent deadline they may cancel delivery. Once the deadline has expired and no successful delivery has been made, the Contract Partner is entitled to withdraw from the purchase agreement in writing. In the event of a withdrawal, the services/deliveries already provided to the Contract Partner must be compensated for.
b. If the quantity of goods we hold during cases of force majeure is insufficient to supply all buyers, we are entitled to make equal reductions to all of our delivery obligations; moreover, we are absolved of our obligations to deliver.
7. Handling and containers
a. Insofar as our goods are subject to the Ordinance on Hazardous Substances, the Contract Partner is obligated to adhere to the product-specific safety data sheet with regards to storage and processing. They must also share the relevant data with their customers if the substances are resold. Current safety data sheets can be obtained from us. If the delivered good is classed as a hazardous substance, it may only be stored in the permitted packaging and transported via the permitted methods. The prescribed markings must also be present.
b. Following the agreed lease period, leased containers must be returned immediately, freight-free and empty, to our warehouse. They may not be used for other purposes or contaminated. The Contract Partner is liable for loss or damage to the leased containers in their safekeeping, even if they are not themselves liable. Late or improperly returned leased containers shall be billed to the Contract Partner at the cost of re-procurement.
8. Transfer of risk
a. Unless otherwise stated in the order confirmation, deliveries are agreed as “ex works”, in the sense of the currently applicable incoterms.
b. We are not obligated to notify the Contract Partner explicitly of the supply as soon as an acceptance date has been agreed upon.
c. Risk is also transferred to the buyer for paid shipping or CIF deliveries as follows: For commercial sales shipments, the risk is transferred when goods are passed on or collected for shipping. For purchases by private customers, the risk is transferred once the goods enter the buyer’s possession. If the shipping and/or delivery is delayed for reasons, for which the buyer is responsible, or if the buyer otherwise enters into default in acceptance, the risk shall be transferred to the buyer.
9. Defects
a. Upon delivery, the Contract Partner must immediately inspect the goods and packaging for defects, shortcomings or incorrect delivery and report such immediately in writing. Defects must be reported in writing and in detail within 3 days of being determined, however no later than 10 days from receipt of the delivery. Otherwise, the goods shall be regarded as accepted by the Contract Partner, unless a defect becomes apparent, which could not be spotted through inspection. If such a defect appears later, it must be reported immediately upon discovery, otherwise the good will be regarded as accepted in spite of the defect.
b. For complaints about quality, a sample of at least 1 litre must be sent immediately, the residual amounts must be kept in the original container and any goods in use must be secured. Furthermore, we must, if required, be allowed the opportunity to take all necessary measures to inspect the complaint on site.
c. Defects are no longer permitted if it is not possible for us to inspect the disputed good, except in the event of proper processing of the good. For goods with a visible defect or after discovering a hidden defect and processing or disposing of the goods without our consent, our liability is excluded.
d. Disputed goods may only be returned with our explicit consent. For approved defects, we shall compensate the costs for the most cost-effective means of shipping.
e. In the event that there is a deviation from point no. 8. a. and a delivery is agreed that is not “ex works”, the Contract Partner must document the transport damages to the shipping company and notify us of this immediately in writing.
f. Measures taken to reduce damage are not considered to be an acknowledgement of a defect. Entering into negotiations about any complaints does not mean that we waive our right to object that the complaint was not submitted in good time, was unfounded or was otherwise inadequate.
10. Liability for defects
a. For approved defects, we are, at our own choice, entitled to fulfil these in the form of a repair or a delivery of a new, defect-free item. In the event of a repair, we shall only bear costs up to the value of the purchase price. Should the improvement or replacement not be successful, the Contract Partner has the right to reduce the payment or to cancel the contract.
b. We will be liable in accordance with statutory provisions insofar as the Contract Partner makes claims for damages that are based on intentional or gross negligence, including intentional or gross negligence by our representatives or vicarious agents. Unless we are claimed to be in deliberate breach of contract, our liability to compensate damages is limited to the foreseeable and typically occurring damages.
c. We shall be liable in accordance with the statutory provisions insofar as we culpably breach a significant contractual obligation. In this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
d. Liability due to culpable injury to life, body or health remains unaffected. This also applies to forced liability in accordance with the Product Liability Act.
e. To the extent not governed by a conflicting provision in the above, liability is excluded.
f. The expiry date for defect claims is 1 year from the date that risk was transferred. Claims due to injury to life, body or health are excluded from this.
11. Other liability
a. Further liability than that provided for in point no. 10. is, without taking the legal nature of the legally enforced claim into account, excluded. This particularly applies to damage compensation claims for fault when concluding the contract, due to other contractual violations or tortious claims to compensation for damage, in accordance with § 823 of the German Civil Code (BGB). This restriction also applies if the Contract Partner demands unnecessary expenses instead of a damage claim in place of performance.
b. Insofar as liability for damages on our part is excluded or restricted, this shall also apply as regards personal liability for damages on the part of our staff, our representatives and vicarious agents.
12. Payment conditions
a. The purchase price is payable net (without deduction) immediately upon receipt of the invoice by the buyer, if no other payment term is given in the order confirmation. Payment is only considered as successful once we are able to access the amount. In the event of a payment by cheque, payment shall be considered successful once the cheque is redeemed.
b. The statutory VAT is not included in our prices. It shall be billed separately at the statutory rate for the day of billing.
c. If the buyer defaults in payment, the statutory provisions apply.
d. The Contract Partner shall only be entitled to the set-off and/or to exercise a right of retention if their counterclaims are ascertained with legal force or undisputed.
e. Without written authority, our employees are not entitled to accept payments or other dispositions.
f. In the event of a default in payment, all special offers, discounts and other benefits shall be void.
g. If we are obligated to perform in advance, we may refuse such advance performance until consideration is effected or a security furnished for such performance if, after conclusion of the contract, justified doubts about the solvency or the creditworthiness of the buyer arise. In this instance, we may set an appropriate limitation period during which the Contract Partner must either render delivery against payment or provide a security. Following expiry of the limitation period without any success, we may withdraw from the contract.
13. Retention of title
a. Until all debts are paid, including all balance debts on current accounts, which are due to the seller from the buyer either now or in the future, the delivered good (retained good) shall remain our property. In the case of non-contractual behaviour by the Contract Partner, for example default in payment, we have the right to take back the retained good after previous fixing of an appropriate time limit. If we reclaim the retained good, this represents a withdrawal from the contract. If we seize the retained good, this is a withdrawal from the contract. We are entitled to realise the retained good following its reclaim. After deduction of a reasonable amount to cover the costs of realisation, the amount owed by the Contract Partner shall be offset from the realisation proceeds.
b. The buyer is obligated to treat with care the goods subject to retention of title and to sufficiently insure them, at their own expense, at new value, against fire and water damage and against theft. Any maintenance and inspection work required is to be conducted at the Contract Partner’s own expense and on time.
c. The buyer shall be entitled to duly sell and/or use the retained goods in the course of business, provided the buyer is not in default in payment. Seizures or security agreements are not permitted. Any debts arising out of the resale or any other legal ground (insurance, tort) with respect to the retained goods (including all receivables from current account) shall now be borne by the Contract Partner in full towards us; we hereby accept the assignment. We grant the Contract Partner the revocable authorisation to collect the receivables assigned to us on their own behalf. Such authorisation for collection of assigned debts can be revoked at any time that the Contract Partner does not meet their payments as prescribed. In the event of a revocation of the authorisation to collect assigned debts, we have the right of return regarding the documents in which the claim is based, for the purpose of disclosing the assignment and collecting our own debts. The Contract Partner shall also not be authorised to assign this debt for the purposes of collection of debts by means of factoring, unless the obligations of the factor should be simultaneously established as effecting the offset to the amount of the debts for as long as debts from us exist vis-à-vis the Contract Partner.
d. The processing or reforming of the retained good by the Contract Partner shall always be conducted on our behalf. Insofar as the retained good is processed with other materials that are not our property, coownership shall be established in proportion of the value of the retained good (the invoiced price inclusive of value added tax) to the other processed items at the time of processing. For the processing of the resulting new material, the same applies as for the retained good. If the retained goods are mixed with other items not belonging to us to form an integral part, we shall acquire coownership of the new material proportional to the value of the retained good (the invoiced price inclusive of value added tax) to the other mixed items at the time of mixing. If, by consequence of the mixing, the buyer's good is to be considered as the main good, we and the Contract Partner agree that the Contract Partner is to transfer partial ownership to us; we hereby accept this partial ownership transfer. Our resulting sole or coownership of the good is to kept safe for us by the Contract Partner.
e. In the event of any action of third parties against the retained good, especially seizures, the Contract Partner shall point out our ownership and notify us without delay so that we can enforce its property rights. If the third party is unable to reimburse us the judicial or out of court costs within this context, the Contract Partner shall be liable for these.
f. We are obligated to release our securities as far as the realisable value of our securities exceeds the debts to be safeguarded by more than 10 %, in this case we are responsible for the selection of the securities to be released.
14. Data storage
In the context of our business relationships, we store relevant personal data regarding the Contract Partner.
15. Place of jurisdiction, place of fulfillment, choice of law
a. If the Contract Partner is the buyer, our business headquarters shall be the place of jurisdiction; we are, however, entitled to lodge complaints against the Contract Partner in the place of jurisdiction for their headquarters.
b. Unless otherwise stated in the order confirmation, our business headquarters is the place of fulfillment.
c. German law shall apply to the contract, however the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
d. Upon agreement from Incoterms, these shall apply in their current version.
e. If individual provisions of the contract with the Contract Partner, including these general terms and conditions, are or become fully or partially ineffective, the validity of the remaining provisions shall remain unaffected by this.