Nola Chemie GmbH, As of: July 2009
The sale of our goods and our other services are based exclusively on the following general terms and conditions. Deviating purchase terms of the customer are hereby expressly rejected. These terms of sale are deemed to have been accepted without reservation by the purchaser, even if he has previously raised objections to them, at the latest when he takes delivery of our products or accepts our services. Deviations from these terms of sale require our express approval in writing for each individual contract in order to be deemed valid. These terms of sale apply only to companies within the meaning of §14 of the German Civil Code (BGB), legal persons under public law or separate estates
under public law within the meaning of §310, paragraph 1 BGB.
Our offers are non-binding. Models and samples are non-binding. Unless otherwise stated in the order confirmation, we provide no quality guarantee of any kind except for a guarantee that the goods conform to their standard quality. The products are delivered in standard packaging and we reserve our right of an over delivery / under delivery of up to and including 2.5% relating to the originally ordered quantity. The calculation is based on the weight given by the seller or manufacturer.
Purchase agreements commence through written order confirmation from us or through implicit delivery.
Unless otherwise agreed, the prices valid on the day of delivery or performance shall apply, with the addition of the applicable statutory VAT. Unless otherwise agreed, prices include our standard packaging in the case of delivery from the factory or warehouse. Unless otherwise agreed, the customer bears shipping costs as well as all taxes, customs charges and fees associated with the delivery, with the exception of costs for rectification.
If a carriage-paid delivery has been agreed, the goods will be delivered free of charge to the receiving station of the customer, not including in-house freight, without implying that a change in the place of performance in accordance with 11) below has been agreed. Additional costs due to special delivery methods requested by the customer (e.g. express delivery, air cargo) must be borne by the customer.
Transfer of risk: Shipping is always at the customer's risk. Risk is transferred to the customer upon handover of the goods to the carrier, and when the goods leave our factory or warehouse (the factory or warehouse of our supplier in the case of transfer orders) at the latest.
The delivery dates quoted by us indicate the foreseeable delivery dates with which we shall endeavour to comply. Agreed delivery dates are only valid on the condition that all details of the order have been clarified and all obligations of the customer have been fulfilled. If a delivery date that has been expressly agreed in writing is not observed due to our fault, the customer will grant us an appropriate extension period in writing. If we still fail to deliver during this extension period, the customer is entitled to withdraw from the sales agreement. Claims for damages by the customer due to delay are determined in accordance with 10) below.
Circumstances or events beyond our control which, despite the exercise of all due care, delay the delivery, make it impossible or significantly impede it (e.g. war, force mauere, forces of nature, accidents, traffic or operational disruption, lack of raw materials or energy, strike or lock-out) shall discharge us from our delivery commitment, even if these occur with our suppliers, for the duration of the disruption plus an appropriate start-up period. If the disruption is not expected to end within an appropriate period of time, we are entitled to withdraw from the agreement, either in part or in whole, without the obligation of rectification.
If the customer delays acceptance or culpably breaches other cooperation duties, we are entitled to claim damages including any additional expenditure. The right to further claims is reserved.
Our invoices for the delivery of goods are payable within the agreed payment term. Our invoices for services and licence fees are payable in full within 10 days from the date of the invoice.
Timeliness of the payment is determined by the date at which the amount is ultimately available to us. Cheques are only accepted on account of performance. Payments by bills of exchange are excluded. If the payment period is exceeded or if payment is incomplete, the customer is deemed to be in default, even without warning, 30 days after the due date and receipt of invoice at the latest. We are, with no prejudice to other claims, entitled to claim interest at 8% above the respective base rate from the date when the customer was first in default, in accordance with §247 BGB. If the customer is in default or if there is due cause to doubt his ability to pay, we are entitled to make all claims against him payable immediately and/or request securities prior to delivery, to completely or partly withhold outstanding deliveries of the present or of other contracts, or to withdraw completely or partly from the existing contracts following expiry of a reasonable deadline set by us.
The customer may only offset our claims against uncontested claims that are ready for decision and/or legally effective and shall only be entitled to withhold payment, if his claims are based on the same contract.
7. Property rights
The delivered goods remain our property (reserved goods) until the purchase price is paid in full and all present or future claims arising from the business relationship with the customer have been settled. The customer is entitled to sell the reserved goods in the course of his normal business as long as he meets his contractual obligations to us. He is not allowed to pledge the goods or use them as security; he must notify us without delay of any infringement of our property rights by third parties.
If the customer does not meet his contractual obligations towards us, we will also be entitled to claim the return of the goods; in this respect, the customer has no claim of ownership. The customer assigns to us at the very moment of the purchase of the reserved goods, all receivables, including all accessory rights, which accrue to it against his customers from reselling or on any other legal basis. The customer continues to be authorised to collect any claims assigned to us until this provision is revoked. The customer shall notify us upon request of the amount of the receivables assigned to him and the names of the debtors.
If the reserved goods are processed, we shall still be regarded as manufacturers and we acquire ownership of the new article. In this case the expectant right of the customer to the object of purchase carries over to the new manufactured article. If the goods are processed together with other materials not belonging to us, we shall acquire co-ownership of the new article in the ratio of the gross invoiced value of the reserved goods to the value of the other materials. If the processing, bonding or mixing with other items is deemed to constitute the main part of the article, we shall acquire co-ownership of the new article to the extent of the gross invoiced value of the reserved goods. Should the value of transferred securities exceed the total of our claims against the customer by more than 10%, we will re-transfer on demand the security interest back to the customer at our discretion in this respect.
Advisory: All verbal and written information about the suitability and application options of our goods are provided to our best knowledge. This does not exempt the customer from the obligation to verify for himself the suitability of the product for his intended purpose.
9. Claims for defects
Claims for defects by the customer shall require that he has properly fulfilled his obligations to inspect and complain in accordance with §377 of the German Commercial Code (HGB). The complaint must be sent to us in writing within three days. In the case of obvious defects in accordance with §377 HGB, the period for complaints begins with the acceptance of the goods; in the case of defects which appear at a later stage, the period for complaints begins when the defects are noticed. The limitation period for any claims arising from defects shall be 12 months from the date of delivery of the goods. This does not apply to the period of limitation in the event of recourse under §§ 478, 479 BGB.
Claims by the customer based on defects are excluded when the defect has been caused by the improper transportation, storage or processing of the delivered goods. Claims for defect may also not be made in the case of normal wear and tear. Insofar as the purchased goods contain a defect which already existed at the time of transfer of risk, the customer is entitled to elimination of the defect or replacement by defect-free goods, at our discretion (rectification). If rectification fails, the customer is entitled to withdraw from the contract or to a reduction in price, at his discretion. Otherwise claims for damages caused by defects are regulated in accordance with 10) below.
We assume liability for intent and gross negligence. We further assume liability in accordance with the statutory provisions for the culpable breach of essential contractual obligations and for any fraudulent concealment of a defect. In the event of slightly negligent violation of essential contractual obligations, our liability is limited to the foreseeable damage for the corresponding type of contract. Liability for culpable injury to life, limb or health remains unaffected; this also applies to liability under the Product Liability Act ("Produkthaftungsgesetz") and the Medical Preparations Act ("Arzneimittelgesetz"). Further claims to damages are excluded.
11. Place of performance
Place of performance for our deliveries is the shipping location in each case. The place of performance for the customer's payment obligations is Rheinbach.
12. Applicable law
Place of jurisdiction: Only the authoritative law of the Federal Republic of Germany for the legal relations of domestic parties shall apply to all legal relations between the customer and us; UN purchase law is excluded. Place of jurisdiction for all legal disputes is Rheinbach. However, we can also take legal action against the customer in the courts of the customer's place of general jurisdiction.
Should individual provisions be or become invalid or contain a gap, the remaining provisions are unaffected. The parties undertake to replace the invalid provision with a legally permissible one which comes closest in meaning to the economic purpose of the invalid provision or which fills the gap.