General Terms of Sale and Delivery (effective December 2004)
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The present translation is furnished for the customer’s convenience only. The original German text of the General Terms of Sale and Delivery is binding in all respects. In the event of any divergence between the English and the German text, constructions, meanings, or interpretations, the German text, construction, meaning or interpretation shall govern exclusively.
1. The terms of sale and delivery set out below are valid for all - also future - offers, deliveries and additional services of the Seller unless they are modified by express and to that extent overriding provisions of the contract.
2. Differing business conditions of the Buyer, of a broker or an agent as well as supplements to the contents of the contract or a modification of the contract shall become effective only upon written confirmation by the Seller.
3. Should any part of the provisions stipulated hereinbefore or hereinafter not be legally valid this shall not affect the remaining provisions which shall continue to be in force.
4. Inasmuch as these terms do not provide otherwise the General Business Conditions (VDC-AGB) recommended by the „Vereinigung der am Drogen- und Chemikalienhandel beteiligten Firmen e.V. (Drogen- und Chemikalienverein)“ (= Association of Companies trading with Drugs and Chemicals/Drug and Chemicals Association), Hamburg shall be applied supplementarily in their respective version valid at any given time including reference to the INCOTERMS.
B. Offers, Contracts and Prices
1. Written commitments or contracts, including those confirmed by telefax, are binding. Verbal offers, commitments or agreements made by employees of the Seller, unless made by a managing director or a „Prokurist“ (holder of special statutory authority), are deemed having been made without obligation and are not binding; to become binding they must be confirmed in writing.
2. Possible increases of public or other duties (customs, price adjustment levies, DSD contributions etc.) as well as increases of freight rates between the contract date and the delivery date are for account of the Buyer.
C. Delivery and Performance / Periods
1. If the Seller does not deliver at the agreed time or within the agreed period of delivery the Buyer is not entitled to assert claims for damages unless the delay has been caused intentionally or by gross negligence on behalf of the Seller or his employees.
2. Claims of damages for nonperformance remain unaffected after a reasonable period of grace has been granted.
3. If delivery is delayed by unforeseeable circumstances of any kind, e.g. impediments of transport, damages of machinery, sickness, strikes, interruptions of operations or force majeure the Seller is entitled to a reasonable extension of periods. This shall also apply in the case of such circumstances occurring at a time when the Seller is already in default. The Seller is not obliged to reimburse the Buyer for any and all costs caused by such unforeseeable delays.
4. Shortages will be acknowledged by the Seller only upon presentation of a consignment note receipted by the forwarder evidencing a relative note of shortage. Such claims must be made immediately upon delivery of goods, otherwise the Seller is not obliged to acknowledge them.
5. The Seller is entitled to effect partial deliveries of reasonable commercial quantities. The Buyer is obliged to pay for the relative partial deliveries. All partial deliveries under a contract are regarded as individual transactions. If goods are shipped in bulk the Seller is for technical reasons entitled to deliver and charge for up to 10 % more or less than the quantity ordered unless the delivery of an exactly determined quantity has expressly been agreed.
D. Retention as to the Seller receiving Delivery himself
In the case of sales from deliveries expected by the Seller himself delivery is subject to the Seller receiving delivery from his presupplier in time and in conformity with the terms of his purchase contract.
E. Payment, Settlement of Accounts / Retention Right
1. If the Buyer is in default with payment of invoice amounts due, the Seller is entitled to charge the legal interest for default at the rate of 8 %, respectively to consumers at the rate of 5 % above the base rate in accordance with ¤ 247 BGB (German Civil Code). In a particular case the Seller is entitled to provide evidence of a higher damage.
2. The Buyer is not entitled to any setoff or to any right of retention with regard to the claims of the Seller unless the Buyer’s claim is not contested or has been assessed by a definite and binding court decision.
3. If after conclusion of the contract the Seller becomes aware of circumstances which make the credit worthiness of the Buyer or the performance of the Buyer’s contractual obligations appear questionable or if the Buyer has been in default with total or partial payments for more than 14 days the Seller is entitled to postpone the performance of his contractual duties until all outstanding accounts receivable have completely been settled and to claim prepayment of any and all accounts receivable under all contracts concluded with the Buyer.
4. If the Buyer does not comply with a legitimate request in accordance with No. E.3. above within 3 business days the Seller is entitled to temporarily refuse the fulfilment of all contracts and - after having granted a period of grace of 3 further business days - to finally refuse the fulfilment of contracts not yet performed and, additionally, to claim damages.
5. The takeover and calling of the agreed delivery is a primary duty of the Buyer. If the Buyer defaults in the takeover or the calling, even of a part of the goods, the Seller is entitled to the rights according to ¤ 281 BGB (German Civil Code).
F. Retention of Title and Assignment of Claims
1. The Seller remains owner of all goods delivered by him until the Buyer has fulfilled all present and future obligations, including those from possible refinance or acceptor’s bills (overall retention of title and current account retention).
2. If the Buyer’s assistance is required to render the retention of title effective, e.g. for registrations required by law in the country of the Buyer, the Buyer is obliged to cooperate accordingly. This is a primary obligation.
3. The Buyer is obliged to insure at his own expense the goods delivered by the Seller under retention
of title against damages resulting from breakage, water, fire and disasters as well as against theft, embezzlement etc. Upon conclusion of the purchase contract the Buyer assigns his claims against the insurance company to the Seller in advance.
4. Any treatment and processing of delivered goods is done by order of the Seller, however, without his obligation. Upon conclusion of the purchase contract the Buyer assigns his title to ownership respectively coownership of mixed or processed goods to the Seller at the relative invoice value of goods delivered under retention of title; these goods are being stored on behalf of the Seller free of charge.
5. Already upon conclusion of the purchase contract the Buyer furthermore assigns to the Seller all claims against third parties, including ancillary and in particular security rights, arising out of the resale of goods delivered under retention of title, including mixed and/or processed goods, in that case at the invoice value of the goods delivered under retention of title.
6. In the usual and orderly course of business the Buyer is authorized to sell goods delivered under retention of title and to collect claims assigned to the Seller; in case of default in payment this authorization shall be considered revoked.
7. Upon the Seller’s request the Buyer is obliged to provide the Seller with information about the goods delivered under retention of title which are still in his possession and those which have already been sold (customers, quantities, invoice values and dates). Furthermore the Seller may at any time request that the goods be stored separately and be marked and that the Buyer keep separate accounting records for accounts receivable and payments from the resale of goods delivered under retention of title and that each payment collected is being forwarded to the Seller immediately upon receipt.
8. The Buyer is prohibited from pledging and/or selling under retention of title goods delivered under retention of title or accounts receivable assigned to the Seller. In the event of third parties’ taking hold of goods delivered under retention of title and/or claims assigned to the Seller the Buyer is obliged to inform the Seller immediately and to reimburse the Seller for any and all costs of intervention.
9. The Buyer’s right to possess the goods delivered under retention of title expires when he does not fulfill his obligations under that or any other contract concluded with the Seller. In that case the Seller is entitled to recover possession of the goods delivered under retention of title and to realize them at his discretion. Enforcement of the retention of title shall not constitute a withdrawal from the contract. The proceeds from the realization will be offset against the Buyer’s liabilities; any remaining claims for payment of the purchase price not covered by such realization and claims for damages remain unaffected.
10. In the case of an excess of security collateral of more than 20 % the Seller is obliged to release at his discretion goods delivered under retention of title respectively assigned accounts receivable in the amount exceeding that percentage.
G. Warranty / Liability
1. If payment against documents has been agreed notifications of defects do not entitle the Buyer to refuse or to delay the taking up of documents and the payment of the purchase price.
2. The period for making a notification of defects which can be determined by means of a usual commercial and/or sensoric inspection shall be no more than 5 business days from the date of delivery resp. release of goods at the agreed place. In cases where a laboratory analysis is usually required the samples must be submitted to the laboratory within 3 business days after delivery of the goods at the latest. In such cases the period for making a notification of defects shall be no more than 3 business days after receipt of the laboratory analysis.
3. If the goods delivered turn out to be deficient the Seller is entitled at his own option to demand subsequent performance by rectification of the deficiency or the delivery of faultless merchandise. In such a case the Seller bears all expenses necessary for the rectification of the deficiencies such as costs of transport and material unless these costs have been caused by the fact that the goods were shipped by the Buyer to a place other than the agreed place of performance.
4. If subsequent performance is not effected within a suitable period of time or if the second attempt fails as well the Buyer is entitled to choose between the demand for a reduction of the sales price and the withdrawal from the contract
5. The Buyer is not entitled to any warranty claims and/or claims for damages against the Seller when prior to the termination of the assessment of damages or defects, the Buyer has touched, forwarded, opened, processed, handled or otherwise modified the goods.
H. General Restrictions of Liability / Limitation Period
1. Notwithstanding any other regulation stipulated in these General Terms of Sale and Delivery claims for damages asserted by the Buyer, for whichever reason including claims based on legal provisions, are excluded. This does not apply only
a) when the damage has been caused by gross negligence or an intentional act or an omission on the part of the management of the Seller or his business executives or
b) when the claims result from a violation of fundamental contractual obligations or
c) when the damage is the consequence of a lack of warranted characteristics.
2. Inasmuch as the Seller is liable his liability is restricted to damages which he, considering the circumstances he knew or ought to have known, typically could have foreseen as a consequences of the breach of contract. This does not apply in the cases according to No. 1.a) above.
3. All warranty claims and/or claims for damages asserted by the Buyer are timebarred within 12 months after complete delivery and takingover of deliveries and services, at the latest after the goods have been touched by the Buyer.
4. The liability under the regulations of the „Produkthaftungsgesetz“ (law regarding product liability) remains unaffected.
I. Place of Performance, Applicable Law, Jurisdiction
1. Place of performance for delivery is the place of loading, and for payment of the purchase price it is Schwebheim.
2. German Law is applicable. The UN sales law (CISG) is not applicable.
3. If in the terms of the law the Buyer is a merchant the following also applies:
All disputes out of and in connection with this contract shall be decided at the Seller’s discretion either by the arbitration court of the „Drogen- und Chemikalienverein e.V.“ (Drug and Chemicals Association), Gotenstra§e 21, 20097 Hamburg or by the courts of general jurisdiction in Schweinfurt. If the Buyer intends to take legal proceedings before the above mentioned arbitration court or the courts of general jurisdiction in Schweinfurt he has to inform the Seller requesting him to exercise his discretion within one week after receipt of the notification. If the Seller fails to exercise his discretion within this period the discretionary decision shall be passed to the Buyer. His decision is to be made immediately and to be communicated to the Seller.