Terms and Conditions

1. Validity and conclusion of contract

These terms and conditions of sale apply exclusively to the entire business relationship between the buyer and us. Purchasing conditions and other terms and conditions of the buyer are hereby contradicted. The acceptance and execution of orders does not constitute a recognition of the buyer’s conditions nor a waiver of our following conditions, even if we do not expressly object to the buyer’s request to this effect. Should one of the provisions of these terms and conditions of sale be or become ineffective, this will not affect the effectiveness of the contract; the statutory regulation will apply instead. In no event will the relevant provision in these Terms and Conditions of Sale be replaced by the Buyer’s terms and conditions. Our written confirmation is decisive for the conclusion of the contract. The regulations of Section 312 e Paragraph 1 Sentence 1 No. 1-3 BGB regarding obligations in electronic commerce are expressly waived between us and the buyer.

2. Prices and prohibition of offsetting

All prices are EXW Incoterms ^®  2010 and plus statutory sales tax, unless otherwise agreed in writing. If customs duties, taxes, fees and other charges increase after the conclusion of the contract, this will be borne by the buyer. In particular, an increase in the statutory sales tax rate between the conclusion of the contract and the actual delivery results in the agreed gross purchase price increasing accordingly. The same applies to increases in transport costs, regardless of whether these are to be borne by the buyer or us. Offsetting by the buyer with counterclaims is excluded unless the buyer’s claims are undisputed or legally established; this does not apply to counterclaims from the same contractual relationship. The regulations on offsetting and the right of retention also apply when asserting defects.

3. Delivery time

3.1  Unless otherwise expressly agreed, promised delivery times and delivery dates (delivery times) refer to the time of dispatch or handover for collection and in no case constitute a fixed transaction. All delivery times are subject to proper and timely self-delivery. If the delivery time is exceeded, the buyer is entitled to set a reasonable grace period and, after its expiry, to withdraw from the contract with regard to the goods or quantity that have not yet been delivered. For further claims, in particular claims for damages,  Section 8 applies .

3.2  Force majeure and events over which we have no influence, such as, in particular, orders from higher authorities, labor disputes including strikes and lawful lockouts, shortages of energy and raw materials, transport disruptions or unavoidable operational disruptions, release us for the duration of the disruption and to the extent of its effects of our delivery obligation. If the disruption is not remedied within a reasonable period of time, we are entitled to withdraw from the contract, excluding any obligation to pay damages. If the delivery delayed or restricted due to such a disruption is demonstrably no longer of interest to the buyer, we will release him from the obligation to purchase the goods, provided that this does not cause us any further disadvantages beyond our own lost profits.

3.3 The above regulation in paragraph 2 also applies if force majeure or one of the events mentioned in paragraph 2 occurs on the part of our suppliers.

4. Late payment and advance payment

4.1 Unless otherwise agreed, payment must be made without deductions immediately upon receipt of the invoice.

4.2 An agreed discount can only be granted if all older invoices that are due have been paid and the buyer settles the outstanding invoice amount in full and on time.

4.3 According to Section 286 Paragraph 3 of the German Civil Code (BGB), the buyer is in default if he does not make payment within 30 days of the due date and receipt of the invoice or an equivalent payment statement.

4.4 If the buyer is in default, default interest of 8 percentage points per annum above the respective base interest rate will be charged. We reserve the right to assert additional or further damages.

4.5 Offsetting and retention rights can only be exercised by the buyer if his counterclaims have been legally established or are undisputed.

5. Transfer of risk

The risk passes to the buyer as soon as the goods have been handed over to the transport company or have left our warehouse. Shipping is always at the buyer’s risk. This also applies if we bear the costs of the transport and/or insure it based on individual agreements. All agreed delivery clauses only regulate the payment of costs.

6. Retention of title

6.1  The goods (“reserved goods”) remain our property until the purchase price has been paid in full. The reserved goods remain our property until all other payment claims arising from the business relationship between us and the buyer that are due at the time of conclusion of the contract have been settled in full. These reserved goods remain our property until our future claims have been paid in full. If we are liable for a bill of exchange in connection with the payment of the purchase price (check/bill of exchange procedure), our retention of title does not expire until the bill of exchange has been redeemed by the drawee. The buyer is entitled to process and sell the reserved goods in the normal course of business, to which the following regulations apply.

6.2  When our reserved goods are processed by the buyer or a third party commissioned by him, we are manufacturers within the meaning of Section 950 of the German Civil Code (BGB) and acquire ownership of the resulting products. If the processing takes place together with other people’s materials, we acquire co-ownership of the new item to any degree of processing in proportion to the invoice value of our reserved goods to the total value of the other people’s materials. The same applies to cases of connection and mixing within the meaning of Sections 947 and 948 of the German Civil Code (BGB). The regulation in Section 947 Paragraph 2 BGB is waived. Instead, the regulation as set out above for processing applies.

6.3  Pledging or transferring the reserved goods as security is excluded. The buyer now assigns all claims from the sale of reserved goods to us as security to the extent of our ownership share in the goods sold, and we accept this assignment; This also applies to a company sale. The buyer is only authorized to collect these claims as long as he properly meets his payment obligations to us. The assignment of claims is excluded.

6.4  If the buyer defaults on payment by more than 1 month, the buyer stops paying, a check or bill of exchange is protested by the buyer (if we are the beneficiary of this check or bill of exchange in any way), a seizure of reserved goods or the application for the opening of insolvency proceedings or a judicial or out-of-court settlement procedure regarding the buyer’s assets, the buyer’s right to process or combine/mix the goods, as well as the right to resell the reserved goods and the right to collect claims, expires. We must be informed immediately about the above events. The request for return and the return of the reserved goods do not constitute withdrawal from the contract.

6.5  At our request, the buyer must provide us with all necessary information about the inventory of the goods we own or co-own and about the claims assigned to us and inform his customers of the assignment. He must inform us immediately of any access by third parties to such goods or claims. He must adequately insure such goods against the usual risks at his own expense.

6.6  If the value of the securities we hold exceeds the claims to be secured by more than 10%, we will release securities of our choice at the buyer’s request. When valuing the collateral, the proceeds that can be realized should the collateral be realized should be assumed. The buyer must provide us with the information necessary for this evaluation immediately upon request.

7. Initial inspection, notices of defects, liability for defects

7.1  The buyer or the recipient designated by him must inspect the goods immediately upon receipt, and in any case before processing. Once defects are discovered, processing of the defective item must be stopped immediately. Obvious defects – including the lack of quality guarantees – must be reported in writing immediately, but at the latest within 7 days of receipt of the goods; hidden defects must be reported in writing immediately, but at the latest within 7 days of their discovery. If the buyer fails to inspect or notify us in a timely and formal manner, the buyer is not entitled to any claims for defects. The timeliness of the notification depends on the time at which we receive it.

7.2  If acceptance or initial sample testing has been agreed, a complaint about defects that the buyer could have discovered through careful acceptance or initial sample testing is excluded.

7.3  In the case of justified complaints about defects, we are obliged, at our discretion, to provide subsequent performance either by delivering fault-free replacement goods or by repairing the defect, whereby the parts complained about become our property. We are entitled to refuse supplementary performance in accordance with the statutory provisions.

7.4  If we do not fulfill the obligation to provide subsequent performance, the buyer can, at his discretion, withdraw from the contract or reduce the price after giving us a reasonable grace period, unless this is unnecessary according to the statutory provisions. In the event of withdrawal, the buyer is liable for deterioration, loss and loss of use not only for the usual care but also for any responsibility.

7.5  Further claims for damages and reimbursement of expenses by the buyer due to or in connection with defects or consequential damage, regardless of the legal basis, only exist in accordance with the provisions in Section 8. In this case, too, we are only liable for typical and foreseeable damage.

7.6  Our liability for defects does not apply if there are no defects in the goods delivered by us, i.e. in particular if defects are due to improper use, incorrect or negligent treatment, natural wear and tear or interventions by the buyer or third parties in the delivery item.

7.7  Claims for liability for defects against us expire at the latest 12 months after delivery of the goods or acceptance, with the exception of the cases regulated in Section 9.7.

7.8  If the end user of the goods is a consumer, the statutory provisions apply to the statute of limitations of any recourse claim of the buyer against us.

8. Exclusion and limitation of our liability for damages and reimbursement of expenses

8.1  For all claims for damages and reimbursement of expenses made against us due to breach of duty, regardless of the legal basis, we are only liable in the event of slight negligence in the event of a breach of essential obligations that endangers the purpose of the contract. Furthermore, our liability for minor negligence is excluded.

8.2  In the event of liability according to Section 8.1 and liability without fault, we are only liable for typical and foreseeable damage. Claiming useless expenses by the buyer is not permitted.

8.3  In the event of slight negligence, we are only liable for damages caused by delays up to 5% of the net order value.

8.4  The buyer is responsible for deciding on the use of the goods or other services supplied by us. Unless we have confirmed in writing the specific properties and suitability of the products for a contractually specified purpose, technical application advice is in any case non-binding. We are also only liable in accordance with Section 8.1 for advice given or not given that does not relate to the properties and usability of the product delivered.

8.5  The exclusion of liability in accordance with sections 8.1 – 8.4 applies to the same extent in favor of our bodies, legal representatives, executive and non-executive employees and other vicarious agents.

8.6  All claims for damages and reimbursement of expenses against us expire 12 months after delivery of the goods, in the case of tortious liability from knowledge or grossly negligent ignorance of the circumstances giving rise to the claim or of the person liable to pay compensation. This does not apply in cases of intent and in the cases specified in Section 8.7. The provisions of Sections 8.1 – 8.6 and Section 7.7 do not apply in the case of strict liability, if there is liability for injury to life, body or health, if a quality guarantee is assumed or if a defect is fraudulently concealed.

9. Export Control

9.1  Principles

We would like to point out to the buyer that for the transfer/export of goods (goods, software, technology) as well as for the provision of services (e.g. assembly, maintenance, servicing, repairs, instructions/training, etc.) with a cross-border connection European and German foreign trade law applies to fulfill the contractual obligation and that individual deliveries and technical services may be subject to export control restrictions and bans. This applies in particular to so-called armaments and dual-use goods. The relevant legal provisions are Regulation (EC) No. 428/2009 (EC Dual-Use Regulation) and its annexes, the Foreign Trade Act (AWG), the Foreign Trade Ordinance (AWV) and its appendix (Part I, Section A and B of the German export list), in the currently valid versions. 

In addition, there are European and national embargo regulations against certain countries and persons, companies and organizations that can prohibit the delivery, provision, transfer, export or sale of goods and the performance of services or make them subject to approval.

The buyer acknowledges that the above-mentioned legal regulations are subject to constant changes and adjustments and are to be applied to the contract in their currently valid version.

The buyer undertakes to recognize and comply with the European and German export control regulations and embargo regulations, especially if the buyer is affected by a re-export requirement of a permit issued to us by the export control authority. We will inform the buyer of a corresponding requirement before shipment/export at the latest.

The buyer further undertakes not to sell, export, re-export, deliver, pass on or otherwise make the delivered goods available, directly or indirectly, directly or indirectly, to persons, companies, institutions, organizations or to countries, unless this is against violates European or German export regulations or embargo regulations.

Upon request, the buyer is obliged to provide us with appropriate and complete information about the end use of the goods or services to be delivered, in particular to issue so-called end-use documents (EUCs) and send them to us in the original in order to determine the end use and intended use of the goods to be delivered or services and to be able to provide evidence to the responsible export control authority.

9.2  Withdrawal, compensation from us

If the necessary export or transfer licenses or other foreign trade permits or releases are not issued by the responsible authorities or are not issued in a timely manner, or if there are other obstacles due to the customs, foreign trade and embargo laws that we as exporters or shippers or our suppliers have to comply with If the provisions of the fulfillment of the contract or delivery contravene, we are entitled, in addition to Section 3, to withdraw from the contract or from the individual delivery or service obligation. This also applies if there are corresponding export control and embargo obstacles between the conclusion of the contract and the delivery or implementation of the service as well as when asserting warranty rights – e.g. B. due to a change in the legal situation – and make it temporarily or permanently impossible to carry out the delivery or service because required export or transfer permits or other foreign trade permits or releases are not granted or revoked by the responsible authorities or other legal obstacles arise due to compliance with customs, foreign trade and embargo regulations conflict with the fulfillment of the contract or the delivery or service.

Section 8 applies to any claims for damages by the buyer for this reason  .

9.3  Delivery times

Compliance with delivery deadlines may require the release or granting of export or transfer permits or other foreign trade permits by the responsible authorities. If we are prevented from delivering on time due to the length of time it takes to properly carry out a customs or foreign trade application, approval or examination procedure, the delivery time will be extended appropriately by the duration of the delay caused by this official procedure. The regulations in Section 3 remain unaffected.

9.4  Compensation for damages by the buyer

The buyer is fully liable to us for damages and expenses that we incur due to the buyer’s culpable failure to comply with European and/or German export regulations or embargo regulations.

10. Property rights

10.1  If goods are manufactured according to the buyer’s instructions and third-party property rights are violated as a result, the buyer releases us from all third-party claims due to the violation of property rights.

10.2  If the buyer breaches the contract, his intellectual property rights do not prevent us from using the goods in accordance with the contract.

11. Data protection, Schufa clause

11.2  The buyer’s personal data is collected, processed and stored taking into account the provisions of the Federal Data Protection Act.

11.3  We reserve the right to obtain information for the purpose of a credit check from the SCHUFA company responsible for the buyer’s place of residence (Protection Association for General Credit Protection) or another credit reporting agency. We also reserve the right to report payment experiences to credit reporting agencies in accordance with the regulations of the BDSG.

12. Place of performance, place of jurisdiction and law

12.1  Place of fulfillment for delivery is the location of the company or warehouse from which delivery is made.

12.2  Place of jurisdiction is Hamburg. However, we are also entitled to sue the buyer at his general place of jurisdiction.

12.3  The contractual relationship is subject to the law of the Federal Republic of Germany under the UK Sales Convention.

12.4  If the buyer is based outside Germany, the CISG (“UN Convention on Contracts for the International Sale of Goods”) applies with the following special rules:

• Contract changes or cancellations must be made in writing. This also applies to agreements regarding the abandonment of this written form agreement.
• In the event of delivery of goods that are in breach of contract, the buyer is only entitled to cancel the contract or deliver a replacement if claims for damages against us are excluded or it is unreasonable for the buyer to utilize the goods that are in breach of contract and claim the remaining damage. In these cases, we are initially entitled to remedy the defect. If the removal of the defect fails and/or leads to an unreasonable delay, the buyer is entitled, at his discretion, to declare the contract to be canceled or to demand a replacement delivery. The buyer is also entitled to do this if rectifying the defect causes unreasonable inconvenience or there is uncertainty about the reimbursement of any expenses incurred by the buyer.

12.5  For the interpretation of agreed delivery clauses, the INCOTERMS apply in their latest version (currently Incoterms® 2010), without prejudice to the regulation made in Section 5 for the transfer of risk.

13. Partial ineffectiveness

If individual contractual conditions are ineffective, the remaining provisions remain fully effective. Instead of invalid provisions, a regulation that comes closest to what was economically intended according to the meaning and purpose of the ineffective clause applies without further ado.

14. Priority German version

These General Terms and Conditions of Sale should be interpreted according to German legal understanding. If the legal meaning of a translation differs from the German legal meaning, the German meaning should take precedence.
 

biolla chemicals GmbH
Alte Holstenstr. 23

21031 Hamburg

Tel: +49 40 67 555 155

Fax. +49 40 67 555 155

info@biolla.de

biolla.de