Art. 1 General - Scope
(1) Our Terms and Conditions of Sale shall apply exclusively; we repudiate any provisions of the purchaser contrary to or diverging from our Terms and Conditions of Sale, unless we have explicitly agreed to their application in writing. Our Terms and Conditions of Sale shall also apply should we execute delivery to the buyer without reservation whilst being aware that provisions of the purchaser are contrary to or diverge from our Terms and Conditions of Sale. Acceptance of our delivery shall, in any case, be deemed to entail acceptance of our Terms and Conditions of Sale.
Our Terms and Conditions of Sale shall only apply visàvis entrepreneurs (such as selfemployed freelancers) within the meaning of Art. 310 para. 1 BGB (German Civil Code).
Art. 2 Offer Offer documents
(1) If the order is an order as defined in Art. 145 of the German Civil Code, we can accept it within two weeks.
(2) We reserve ownership and copyright to illustrations, drawings, calculations and any other documentation. This shall also apply to written documentation designated “confidential”. The buyer must obtain our explicit consent in writing prior to forwarding it to third parties.
Art. 3 Prices - Terms of payment
(1) Unless agreed otherwise, our prices shall apply to deliveries with a net value from € 77.00 free domicile. For a net value below this, packaging and transportation costs will be charged separately.
(2) Our prices do not include the statutory value added tax, which is separately itemized in the invoice at the statutory amount on the day of invoicing.
Unless otherwise agreed, the purchase price shall be due within 10 days after the date of invoice with a deduction of 2% or within 30 days after the date of invoice net without any deductions.
Payment of the invoiced amount shall be effected only by bank transfer to one of the bank accounts stated on the invoice. The statutory provisions shall apply in respect of the consequences of any delay in payment. The buyer shall only be entitled to setoff if his or her counterclaim has been determined res judicata, is uncontested or has been acknowledged by us.
In addition, he or she is entitled to execute a right of retention provided that his or her counterclaim derives from the same contractual relationship.
Art. 4 - Lead time
(1) Statements on lead times refer to dispatch of the goods ex works and are never binding. Terms of delivery are only binding if agreed in writing.
(2) The timely and proper performance of the buyer's obligation is a prerequisite for adherence to our supply commitment. We reserve the right to the defence of nonperformance of the contract.
(3) Should the buyer fail to accept delivery or culpably infringe any other obligations to cooperate, we shall be entitled to claim compensation for any loss we thereby incur, including any potential additional costs. Further claims remain reserved.
(4) If the conditions as defined in para. (3) are fulfilled, the risk of accidental destruction or accidental deterioration of the item purchased passes to the buyer at the moment at which the buyer becomes in default of acceptance or debtor’s delay.
(5) We are liable in accordance with the statutory provisions to the extent that the underlying sales agreement is a transaction for a delivery by a fixed date as defined in Art. 286 para. 2 no. 4 BGB (German Civil Code) or in Art. 376 HGB (German Commercial Code).
We are also liable in accordance with the statutory provisions to the extent that the buyer is entitled to claim that his or her interest in further performance of the contract has ceased as a consequence of a delay in delivery caused by us.
Art. 4 - Lead time (continued)
(6) We are also liable according to the statutory provisions insofar as the delay in delivery is caused by an intentional or grossly negligent breach of contract for which we are responsible;
a fault by our representatives or persons employed by us in the performance of our activities and obligations (“Erfüllungsgehilfen”) shall be attributable to us.
Unless the delay in delivery is caused by an intentional breach of contract attributable to us, our liability for damages is limited to the foreseeable, typically incurred loss.
(7) We are also liable in accordance with the statutory provision to the extent that the delay in delivery is caused by a culpable breach of a material contractual obligation; in this case our liability for damages is limited to the foreseeable, typically incurred loss.
(8) In other respects we are liable in the case of delay in delivery for each complete week of delay to the extent of a lump sum compensation for default amounting to 0.5% of the value of the goods to be delivered, but not exceeding 5% of the value of the goods to be delivered.
(9) Any statutory claims and rights of the buyer remain reserved.
Art. 5 Passing of risk - Packaging costs
(1) Unless otherwise agreed, the risk of accidental destruction or accidental deterioration of the item purchased passes to the buyer as soon as Humanchemie has delivered the item purchased to the forwarding agent, carrier or any other person instructed to execute shipment.
(2) Return of delivered goods to Humanchemie shall only be permissible if agreed in advance by telephone. The delivered goods can only be returned unused and in the original packaging at the buyer’s expense and risk to Humanchemie.
(3) Transport packaging and any other packaging in accordance with the German packaging deposit scheme (Verpackungsordnung) are not taken back. The buyer is obliged to arrange disposal of packaging at his or her own expense.
Art. 6 - Liability for defects
(1) It is a precondition of any claim by the buyer based on defects that the buyer has duly fulfilled his or her duty to examine and give notice in accordance with Art. 377 HGB (German Commercial Code).
(2) Should the item purchased have a defect, we are entitled to conduct supplementary performance by removal of the defect or delivery of a new item free of defect at our option.
(3) If supplementary performance fails, the buyer is entitled to demand rescission or reduction of the purchase price at his or her option.
(4) We shall be liable in accordance with the statutory provisions insofar as the buyer asserts claims for damages based on intent or gross negligence, including intent or gross negligence of our representatives or persons employed by us in the performance of our activities and obligations (“Erfüllungsgehilfen”).
(5) We shall be liable in accordance with the statutory provisions insofar as we culpably infringe a material contractual obligation; in this case, however, liability for damages is limited to the foreseeable, typically incurred loss.
(6) Liability arising out of culpable injury to life, body or health remains unaffected; this also applies to strict liability according to the German Product Liability Act.
(7) Unless otherwise agreed above, liability is excluded. The period of limitation for claims based on defects is 12 months, starting from the moment of passing of the risk. In the event of a delivery recourse in accordance with Art. 478, 479 BGB (German Civil Code), the period of limitation remains unaffected; it amounts to five years, starting from the moment of delivery of the defective item.
Art. 7 - Total liability
(1) Further liability for damages beyond that provided for in Art. 6 is excluded irrespective of the legal nature of the asserted claim. This applies, in particular, to claims for damages culpa in contrahendo, due to other breaches of duty or due to claims in tort for compensation for property damage pursuant to Art. 823 BGB (German Civil Code).
(2) Insofar as liability for damages is excluded or limited towards us, this shall also apply with regard to the personal liability of our employees, staff members, agents and persons employed by us in the performance of our activities and obligations (“Erfüllungsgehilfen”).
Art. 8 - Retention of title
We reserve the retention of title to the item purchased until receipt of all payments arising out of the business relation with the buyer. In the case of breach of contract by the buyer, in particular in the case of default in payment, we are entitled to take back the item purchased. Repossession of the item purchased is not deemed to entail rescission of the contract unless we have explicitly declared this in writing.
Attachment by us of the item purchased is always deemed to entail rescission of the contract. After repossession of the item purchased, we are entitled to sell it. The sales proceeds shall be set off against the amounts payable by the buyer less appropriate sales costs.
Insofar as the buyer is obliged to return the item purchased because of the buyer's violation of his or her duty, he or she shall bear the costs we incur in repossessing the item purchased.
The buyer shall immediately inform us in writing of attachments or other interventions by third persons so that we can take legal action pursuant to Art. 771 ZPO (German Code of Civil Procedure).
Insofar as the third party is not capable of reimbursing the court costs and extrajudicial costs of an action according to Art. 771 ZPO (German Code of Civil Procedure) the buyer shall be liable for the loss we incur.
The buyer is entitled to resell the item purchased in the orderly course of business; however he or she will assign to us up to the amount of our claim in the final amount invoiced (including VAT) all receivables which fall due to him or her from the resale from his or her recipients or third parties, regardless of whether the item purchased has been resold without or after processing.
The buyer remains entitled to collection of this claim even after assignment. Our authority to collect the claim ourselves remains unaffected hereby. However we bind ourselves not to collect the claim as long as the buyer meets his or her financial obligations out of the revenues received and does not get into arrears and, in particular, as long as no petition in insolvency has been filed or payments have been suspended.
If this is the case, we may demand that the buyer inform us of the assigned receivables and their obligors, give all details required for collection, hand over the corresponding documents and inform the obligors (third parties) of the assignment.
We bind ourselves upon the buyer's request to release the securities due to us insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is incumbent on us.
Art 9. Jurisdictional venue - Place of performance
(1) The place of jurisdiction is to the extent it is permitted by law the venue of our place of business in Alfeld (Leine); however we are also entitled to sue the buyer at the competent court for his or her place of residence.
(2) The law of the Federal Republic of Germany shall apply excluding the UN CISG.
(3) Unless otherwise agreed, the place of performance is our registered place of business.
This English translation of the German original Verkaufs und Lieferbedingungen is a voluntary courtesy translation provided to the customer. In any dispute the German original shall prevail.
Issue: April 01, 2005