Lipoid GmbH
1. Area of Application
1.1 The present General Terms and Conditions of Sale shall apply to all our business relationships with our customers (hereinafter called: “Buyer”). They shall also apply to all and any future deliveries or offers to the buyer, even if they are not again separately agreed.
1.2 Deviating, contradicting or supplementing general terms and conditions of the buyer shall not apply, even if we do not object to their applicability in individual cases. This shall also apply if we unreservedly perform the delivery to the buyer having knowledge of the buyer’s general terms and conditions.
2. Offer and Conclusion of Contract
2.1 All our offers are without obligation and non-binding. The ordering of the goods by the buyer shall be deemed a binding contract offer. We shall be entitled to accept this contract offer within two calendar weeks from receipt. The acceptance may be declared in writing or by delivering the goods to the buyer.
2.2 Amendments and modifications of the agreements made, including the present general terms and conditions of sale, shall be made in writing to be effective.
3. Prices and Payment
3.1 If not otherwise agreed upon, our prices shall be in Euro ex-works plus statutory value-added tax.
3.2. To the extent the agreed prices are based on our list prices and if the delivery is to be made more than 4 months from concluding the contract, the list prices valid at the time of delivery shall apply.
3.3 Invoice amounts shall be due and payable within 14 days from invoicing and delivery of the goods without any deduction. The decisive date for the payment date is the date of receipt by our company.
3.4 The buyer will be in default on expiry of the above-mentioned payment deadline. During the period of default, the purchase price shall bear interest at the applicable default interest rate. We reserve the right to assert any further default damages. Our right to the commercial maturity interest (Section 353 German Commercial Code) shall remain unaffected.
3.5 We shall be entitled to make still pending deliveries only against advance payment or security if circumstances come to our knowledge after conclusion of the contract which are suitable to significantly reduce the creditworthiness of the buyer and because of which the payment of our pending claims from the relevant contractual relationship (including other individual orders for which the same general contract applies) by the buyer is endangered.
3.6 The buyer shall only be entitled to offsetting or retention rights to the extent the buyer’s claim has been ruled legally binding or is undisputed.
4. Delivery and Delivery Period
4.1 The deliveries shall be made ex-works. Periods and deadlines for deliveries held out by us shall only be approximate, provided no fixed period or fixed deadline has been expressly promised or agreed. If shipment was agreed, the delivery periods and delivery deadlines shall refer to delivery to the carrier, forwarder or other third parties entrusted with the transport.
4.2 We shall not be liable for any impossibility of delivery or for delivery delays if and when these have been caused by force majeure or other events not foreseeable at the time of concluding the contract (e.g. interruptions of operations of any kind, problems regarding material or energy procurement, transport delays, strikes, legal lockouts, labor, energy or raw material shortages, difficulties procuring the required official permits, regulatory measures or non-delivery, incorrect or delayed delivery by suppliers) which are beyond our control. Should such events render the delivery significantly difficult or make it impossible and should the obstacle be not only of temporary duration, we shall be entitled to withdraw from the contract. In case of obstacles of temporary duration, the delivery periods shall be prolonged or the delivery deadlines shall be delayed by the period of obstacle plus a reasonable start-up period. Should the acceptance of the delivery because of the delay be not reasonable for the buyer, the buyer may withdraw from the contract by immediately submitting a written declaration to us.
4.3 Without any special agreement, we shall only be entitled to partial deliveries if the partial delivery can be used by the buyer within the scope of the contractual intended use, the delivery of the remaining ordered goods is guaranteed, and no significant additional work and expenses or additional costs are incurred to the buyer by this (unless we are prepared to assume these costs). With regard to the passing of risk, impairments of performance and payment obligations, a justified partial delivery shall be deemed an independent performance.
4.4 For call orders, the time-limit for acceptance shall be three months from conclusion of the contract, if not expressly otherwise agreed upon.
5. Place of Performance, Shipment, Packaging, Passing of Risk
5.1 The place of performance for all and any obligations from the contractual relationship shall be Ludwigshafen/Rhein. If not otherwise agreed, we shall determine the type of shipping (specifically carrier, shipping route, packaging).
5.2 The risk shall pass upon delivery of the goods to the carrier, forwarder or other third parties destined to carry out the shipment at the latest. This shall also apply when partial deliveries are made. Should the shipping or delivery be delayed because of any circumstances within the control of the buyer, the risk shall pass to the buyer from the date at which the goods have become ready for shipment and we advised the buyer to this effect.
5.3 Should the buyer default in acceptance, we shall be entitled to claim compensation of the loss incurred because of this, inclusive of additional expenditure (e.g. storage costs).
5.4 We shall not be obliged to accept return of packaging material.
6. Buyer’s Claims for Defects
6.1 The delivered goods shall be thoroughly inspected immediately upon delivery to the buyer or the third party specified by the buyer. It shall be deemed accepted if we do not receive any written notification of defect with regard to obvious or other defects, which could be determined during an immediate, thorough inspection, within 10 days from delivery of the goods. With regard to other defects, the goods shall be deemed accepted if we do not receive a written notification of defect within 10 days from determination of the defect, 3 months from delivery at the latest. If and when the goods are deemed accepted with regard to defects, our liability for these defects shall be excluded.
6.2 If the goods are defective and if the buyer properly notified us to this effect according to item 6.1, the buyer shall be entitled to the statutory rights with the following provisions:
a) We shall first be entitled to, in our discretion, either remedy the defect or supply the buyer with goods free of defects (subsequent performance);
b) The buyer may claim damages under the prerequisites set out in item 7.
6.3 Our information on the goods shall not represent any guarantee of quality but are solely descriptions or identifications of the goods. Properties of specimen and samples shall thus only be binding if and when they have expressly been agreed as property of the goods.
7. Other Liability
7.1 To the extent not following otherwise from the present general terms and conditions including the following provisions, we shall be liable in case of infringement of the contractual and non-contractual obligations according to the pertinent statutory regulations.
7.2 We shall be liable for damages – independent of the legal grounds – in case of intent and gross negligence. In case of ordinary negligence, we shall only be liable
a) for damages resulting from injury of live, body or health,
b) for damages resulting from the infringement of material contractual obligations (obligation whose performance renders the proper performance of the contract possible in the first place and on whose observance the contract partner regularly relies and may rely on); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
7.3 The above-mentioned exclusions and limitations of liability shall in the same scope apply to our bodies, legal representatives, employees and other vicarious agents.
7.4 The exclusions and limitations of liability resulting from the items 7.2 and 7.3 shall not apply if and when we fraudulently concealed a defect or assumed a guarantee for the property of the goods. The same shall apply to claims of the buyer according to the product liability law.
7.5 We cannot assume any responsibility for risks, formulations or obligations resulting from the use of our products because the working conditions in the facilities of our customers are beyond our control.
8. Statute of Limitation
8.1 The general limitation period for claims from material defects and defects of title shall be one year from delivery of the goods. The special statutory regulations for real rights claims for surrender of third parties (Section 438(1) No. 1 German Civil Code), in case of seller's fraudulence (Section 438(3) German Civil Code) and for claims of the entrepreneur against the supplier for final delivery to a consumer (Section 479 German Civil Code) shall remain unaffected.
8.2 The above-mentioned limitation periods of the sale of goods law shall also apply to contractual and non-contractual claims for damages of the buyer which are based on a defect of the goods, unless the application of the regular statutory limitation (Sections 195, 199 German Civil Code) would result in a shorter limitation in individual cases.
8.3 Instead of the above-mentioned limitation period of one year, the statutory limitation periods shall apply in the event of a liability for intent or gross negligence, in the event of fraudulent concealment of a defect, in the event of damages resulting from the injury of life, body or health, in the event of assumption of a guarantee of quality as well as in the event of a mandatory liability according to the product liability law.
9. Reservation of Title
9.1 All and any goods delivered by us to the buyer shall remain our property until full payment of the existing current and future claims from our business relationships with the buyer (secured claims).
9.2 The goods subject to a reservation of title may neither be pledged to third parties nor assigned as security until the secured claims are fully paid. The buyer shall immediately inform us in writing if third parties access the goods subject to reservation of title in this respect.
9.3 The buyer shall be entitled to sell and/or process the goods subject to reservation of title in the usual course of business. In this case, the following provisions shall apply in addition:
a) The reservation of title shall include the products resulting from processing, mixing or joining of our goods at their full value, whereby we shall be deemed manufacturer. Should in case of processing, mixing or joining with goods of third parties, the ownership of the third party be maintained, we shall acquire a co-ownership in the proportion of the invoice values of the processed, mixed or joined goods. For the resulting product, the same shall apply otherwise as for the goods delivered subject to reservation of title.
b) The claims against third parties resulting from the resale of the goods or the products shall already now be assigned by the buyer to us as security in the whole amount or in the amount of the possible co-ownership share according to the above paragraph. We do accept the assignment. The duties of the buyer specified in item 9.2 shall also apply with regard to the assigned claims.
c) We authorise the buyer revocably to collect the claims assigned to us in the buyer's own name. We may revoke this authorisation to collect only in the event of realisation.
d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities in our discretion on request of the buyer.
e) Should we withdraw from the contract in the event of the buyer’s behaviour in breach of the contract – specifically default in payment – (event of realisation), we shall be entitled to demand that the goods subject to reservation of title be returned.
10. Place of Jurisdiction and Miscellaneous
10.1 The exclusive place of jurisdiction for all and any disputes arising from the business relationship between us and the buyer shall be Ludwigshafen/Rhein. Applicable law shall exclusively be German law. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
10.2 Should the contract or the present general terms and conditions of sale contain gaps as to provisions, those legally effective provisions shall be deemed agreed to fill these gaps which would have been agreed by the parties to the contract according to the economic purposes of the contract and the purpose of the present general terms and conditions of sale had they known the gap in the provisions.
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Lipoid AG
1. Area of applicability The following terms are the basis for all transactions with us, including ones in the future unless otherwise expressly agreed.
Deviations from these terms require our specific confirmation in writing.
2. Quotations Our quotations are not binding. A contract is first brought about once we confirm or execute the order.
3. Prices The prices valid on the day of delivery are decisive for calculating the invoice, unless a fixed price has been agreed in writing. Falling agreement otherwise, the prices are ex factory. Our prices are EURO prices unless another currency has been expressly agree upon.
If the prices increase since the contract was concluded, the buyer is entitled to cancel his order within 14 days after being informed about the price increase; the cancellation right does not apply for price increases which are based on an increase in value added tax.
4. Delivery, passing of risk We are entitled to make part deliveries. Delivery takes place at the buyer’s risk. The risk is passed over to the buyer when the goods are handed over to the first forwarding agency. Goods which are not taken delivery of in time, are stored at the cost and risk of the buyer.
In the event of a delay in taking delivery, we can refuse delivery of the goods which have not been accepted, subject to our other rights.
Failing special agreements, we determine the type of transport and route as authorised representatives of the buyer.
For loading on waterways, open shipment is reserved. For delivery freight paid only, the normal freight is borne by the seller. Other costs and unexpected surcharges, mooring fees, low water surcharges, lighter costs, wintering charges etc. are borne by the recipient. We are not committed to disclose the freight costs for freight paid prices.
We cannot take back packaging material.
5. Quantity to be delivered, weight determination Our dispatch department is responsible for the determination of the weight and the establishment of the number of pieces delivered which are authoritative for both parties.
6. Delivery problems Circumstances and events for which we are not responsible, as well as all cases of force majeure including war, strike, lock-outs, lack of raw materials or energy, operating or traffic disturbances, restraints of princes as well as disturbances and limitations at our subcontractors, free us from our duty to deliver for the duration of their effect. In such cases we are entitled to deliver with corresponding delay or to cancel the contract partially or totally. The buyer can cancel the contract, if we do not inform him whether we intend to cancel the contract or deliver within an appropriate set time.
Claims for compensation due to a delay in delivery or non-delivery are excluded in so far as this is legally permitted. For orders whose performance consists of several deliveries, non-performance, insufficient or delayed performance of one delivery has no influence on other deliveries of the contract. If due to delivery problems, the quantity of goods available to us is not sufficient for the performance of all deliveries, we are entitled to make equal cuts. Additionally, we are free from delivery commitments.
7. Complaints The buyer has to subject the goods to a conscientious incoming goods inspection and if faults are discovered, we are to be informed of these immediately, if it is a question of clear faults within 8 days and in the case of hidden faults immediately after their discovery, three months after delivery at the latest. These faults are to be described so clearly that we can easily check the justification of the complaint. If the buyer fails to lodge a complaint or if he repacks, uses, mixes or sells the goods, this counts as approval without reservation. Our measures to reduce the damage do not count as a recognition of the fault. We have the option of either replacing faulty goods, cancelling the contract or reducing the invoice.
Our details regarding the object of delivery and service, purpose of use etc. solely represent descriptions or designations and not assured qualities.
In the case of qualities being assured, our liability for compensation is limited to double the value of the goods, to the exclusion of indirect or consequential damages, in so far as the assurance only covers the conformity of the delivery/ service with the contract.
8. Claims for compensation Claims for compensation of all type and irrespective of which legal ground also from culpa in contrahendo, positive violation of a contract and tortious act against us, our legal representatives, aides and employees are excluded, in so far as this is legally possible.
These liability conditions also apply to our oral and written advice.
Lipoid does not take responsibility for potential infringement of third party property rights.
As operating conditions in our customer’s plant are beyond our control, we cannot assume responsibility for risks, formulae or liabilities, that may result from the use of our products.
9. Terms of payment Payment is to be made in accordance with the respective agreements.
Counterclaims only entitle the buyer to setting-off if they are undisputed or recognised by declaratory judgement.
The buyer is only entitled to a right of retention in connection with claims from the same contractual relationship.
If the buyer comes into arrears with the performance of his obligations, we are entitled, subject to further claims for compensation, to charge 3% interest on arrears per annum above the current discount rate of the Deutsche Bundesbank or the highest financial institute in Germany. In addition to this, we can fully or partially withhold or reject other deliveries from this or other contracts and demand the immediate payment for all deliveries and payment in advance.
10. Reservation of title The ownership of the goods is not transferred to the buyer until all our claims which exist at the time of delivery have been paid. The buyer can however process or sell the reserved goods within the framework of a proper commercial operation under the following conditions: The processing takes place with the deviation from the regulation of § 950 BGB (German Civil Code) for us subject to the provision that we obtain coownership to the processed goods in ration of the purchase price of the processed reserved goods to the sales price of the processed product.
The buyer herewith assigns for security his future claims to third parties from the resale of the reserved goods to the full amount, and from the sale of the processed product with a share corresponding to the co-ownership. The buyer is entitled to collect assigned claims as long as he has fulfilled his payment obligations to us correctly.
We commit ourselves to release the securities we are entitled to according to the above regulations - at our choice - in so far as their value exceeds the claims to be secured by 25%.
11. Place of performance The place of performance for our services and for the services of the buyer - especially for the payment - is CH-6312 Steinhausen.
12. Law and Jurisdiction Applicable law is the law of Switzerland. The place of jurisdiction is CH-6300 Zug.
Steinhausen, 20.05.2009
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