Terms of Supply of Buchem Chemie + Technik GmbH & Co. KG
1. Scope
1.1 These terms and conditions (the “Terms of Supply”) shall apply to all supplies of products (the “Products”) by Buchem Chemie + Technik GmbH & Co. KG, Von- der-Wettern-Str. 23, 51149 Cologne (“BUCHEM CHEMIE”) to its customers.
1.2 Contractual terms and conditions deviating from these Terms of Supply shall only be binding on BUCHEM CHEMIE if they have been expressly accepted by BUCHEM CHEMIE in writing. General terms and conditions of the customer are expressively excluded as part of the agreement with the customer.
2. Orders and Offers
2.1 Orders of the customer for the supply of products shall only be binding on BUCHEM CHEMIE if they have been accepted by BUCHEM CHEMIE in writing. The acceptance of customer orders is at the discretion of BUCHEM CHEMIE.
2.2 Unless expressly stated otherwise in an offer made by BUCHEM CHEMIE, all offers made by BUCHEM CHEMIE shall be non-binding for BUCHEM CHEMIE.
3. Terms of Delivery
3.1 Unless otherwise agreed with the customer, all supplies by BUCHEM CHEMIE to the customer shall be delivered “Ex Works” registered office of BUCHEM CHEMIE in accordance with Incoterms 2020.
3.2 Delivery dates and/or delivery periods for products are not binding on BUCHEM CHEMIE unless they have been expressly accepted as binding by BUCHEM CHEMIE in writing.
3.3 BUCHEM CHEMIE cannot be held liable for delays or failure of delivery if the delay or failure of delivery is due to circumstances beyond the control of BUCHEM CHEMIE.
3.4 Packaging shall be at the discretion of BUCHEM CHEMIE and shall be invoiced separately. Unless required by mandatory law, BUCHEM CHEMIE shall not be obliged to take back the packaging.
4. Prices and Terms of Payment
4.1 Unless otherwise agreed in writing between BUCHEM CHEMIE and the customer, all product prices will be quoted, invoiced and paid in Euro.
4.2 Invoices will be issued immediately after the products have been delivered “Ex Works” in accordance to clause 3.1..
4.3 Unless otherwise agreed in writing between BUCHEM CHEMIE and the customer, payment by the customer shall be made within 10 days from the date of the relevant invoice of BUCHEM CHEMIE with a 2% discount or within 30 days from the date of the invoice net (without deduction).
4.4 The customer is not entitled to set off payment claims of BUCHEM CHEMIE against claims of the customer or to withhold payment due to claims of the customer, unless the respective claim of the customer has been acknowledged by BUCHEM CHEMIE or has been established by a final court decision.
5. Security Rights
5.1 Title to the products delivered by BUCHEM CHEMIE shall only pass to the customer after BUCHEM CHEMIE shall have received payment of all amounts owed by the customer to BUCHEM CHEMIE under the business relationship between BUCHEM CHEMIE and the customer (“Reserved Goods”).
5.2 The customer is entitled to resell the Reserved Goods to third parties in the ordinary course of business. However, in order to secure its payment obligations towards BUCHEM CHEMIE, the customer hereby assigns to BUCHEM CHEMIE all present and future claims arising from the resale of the Reserved Goods in the amount of the invoice including VAT. The customer is authorized to collect the claims as trustee of BUCHEM CHEMIE. As long as the customer meets his payment obligations, BUCHEM CHEMIE shall not collect the assigned claims itself.
5.3 The processing of ReservedGoods by the customer shall always be carried out on behalf of BUCHEM CHEMIE. If the Reserved Goods are processed or manufactured together with goods of third parties, BUCHEM CHEMIE shall acquire co-ownership rights with respect to the processed or manufactured goods with a co-ownership interest corresponding to the value of the Reserved Goods in relation to the value of the processed or manufactured goods. Clause 5.2 shall apply accordingly.
5.4 If the Reserved Goods are intermingled with goods of third parties, BUCHEM CHEMIE shall acquire co-ownership rights with respect to the intermingled goods with a co-ownership interest corresponding to the value of the Reserved Goods in proportion to the value of the intermingled goods. If the intermingling has taken place in such a way that the goods are mainly to be regarded as the customer’s goods, the customer hereby assigns to BUCHEM CHEMIE a co-ownership interest in the goods in the proportion set out in clause 5.3. The customer shall hold BUCHEM CHEMIE’s ownership or co-ownership interest as trustee.
5.5 BUCHEM CHEMIE shall release the securities set forth in this clause 5 to the extent that the total value of the securities exceeds the value of the payments owed by the customer by 10 percent or more.
5.6 In the event that a security pursuant to clauses 5.1 to 5.5 above is not enforceable in the territory to which the products are delivered, the customer shall, upon request by BUCHEM CHEMIE, provide BUCHEM CHEMIE with a bank guarantee or any other equivalent security to secure BUCHEM CHEMIE’s payment claims arising from the supply of products.
6 Liability for Defects
6.1 BUCHEM CHEMIE warrants to the customer for a period of twelve (12) months from the date of delivery to the customer that the delivered products comply with the agreed requirements, are suitable for the contractually intended purpose and are free from other defects in workmanship or design.
6.2 The customer shall inspect the delivered products upon receipt to determine whether they show any obvious product defects. He shall immediately inform BUCHEM CHEMIE of any product defects detected during such incoming inspection. If the customer discovers a hidden product defect (i.e. a product defect which could not reasonably be detected during the incoming inspection), the customer shall inform BUCHEM CHEMIE of such hidden product defect without undue delay after having become aware of it. BUCHEM CHEMIE shall not be liable for product defects (and the products shall be deemed to be free of defects) if the customer has not notified the product defect in accordance with the foregoing.
6.3 If a product shows a product defect attributable to BUCHEM CHEMIE pursuant to clauses 6.1 and 6.2, BUCHEM CHEMIE shall – at its sole discretion – have the option either to
(a) replace or repair the defective product; or
(b) reduce the purchase price for the defective products; or
(c) issue to the customer with a credit note corresponding to the value of the defective products.
If the product defect is not remedied by BUCHEM CHEMIE within a reasonable period of time after receipt of a notice of defect or if BUCHEM CHEMIE refuses to remedy the defect, the customer shall be entitled to withdraw from the purchase contract concerning the defective product or to demand a reduction of the purchase price for the defective product.
6.4 The warranties set out in this clause 6 are exclusive. BUCHEM CHEMIE shall not assume any further liability for product defects. The customer may only claim damages and reimbursement of expenses in accordance with clause 7 below.
7. Limitation of Liability for Damages
7.1 BUCHEM CHEMIE accepts liability to the customer without limitation for damages in accordance with the statutory provisions in the following cases:
(a) in the event of intentional and/or grossly negligent conduct on the part of BUCHEM CHEMIE and/or its vicarious agents;
(b) in the event of death or injury to the body and/or health of a person;
(c) to the extent that BUCHEM CHEMIE has guaranteed a specific quality of a product; and/or
(d) to the extent that BUCHEM CHEMIE is liable for personal injury or damage to private property
pursuant to the Product Liability Act and other mandatory provisions of product liability law.
7.2 Furthermore, BUCHEM CHEMIE shall be liable to the customer for damages in the event of a slightly negligent breach of material contractual obligations by BUCHEM CHEMIE and/or its vicarious agents. In these cases, however, the liability of BUCHEM CHEMIE shall be limited to the amount of the foreseeable and contract-typical damage. The liability of BUCHEM CHEMIE pursuant to clause 7.1 shall remain unaffected. All contractual obligations of BUCHEM CHEMIE arising from the customer contract which make the performance of the contract possible in the first place and on the performance of which the customer may rely shall be deemed to be material contractual obligations.
7.3 In all other respects, BUCHEM CHEMIE’s liability for damages towards the customer shall be excluded.
8 Applicable Law, Jurisdiction
8.1 These Terms of Supply shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
8.2 The place of jurisdiction for all disputes in connection with the customer contract shall be the courts in Cologne. However, BUCHEM CHEMIE shall be entitled to bring an action against the customer at his registered place of business. Except in case of preliminary injunctions the choices of forum pursuant to this clause 8.2 are exclusive.