Terms of Sale and Delivery
of Borchers GmbH, Berghausener Str. 100, 40764 Langenfeld, Germany
Any deliveries, services and offers of the seller are exclusively based on these general sales and delivery conditions. These are integral parts of all contracts the seller concludes with contractual partners (hereinafter also referred to as "clients") for the deliveries or services offered by the seller. They shall also apply for any future services, deliveries or offers to the client even if they are not separately agreed upon again.
Terms and conditions of the client or third parties shall not apply even if the seller does not separately disagree to their applicability in the individual case. Even if the seller makes reference to a letter which contains or refers to terms and conditions of the client or any third party, this shall not constitute an agreement to the applicability of such terms and conditions.
2. Offer and conclusion of the contract
Any offers of the seller shall remain without obligation and unbinding unless they are expressly marked as binding or include a certain period for acceptance. The seller shall be entitled to accept orders or jobs within 14 days after receipt.
For the legal relation between the seller and client, the purchase agreement concluded in writing including these general sales and delivery conditions shall solely be decisive. It completely reflects all covenants between the contractual parties relating to the object of the contract. Oral promises of the seller prior to conclusion of this contract shall be legally unbinding and oral agreements of the contractual parties shall be replaced by the written contract unless they respectively expressly state that they continue to apply in a binding manner.
Any amendments and modifications of the agreements reached including these general sales and delivery conditions shall require the written form in order to be effective. With the exception of managing directors or authorised signatories, the employees of the seller shall not be entitled to make oral agreements deviating from this. For fulfilment of the written form requirement, transmission by telefax shall be sufficient. Sending via e-mail shall not be sufficient for its fulfilment.
The seller reserves the ownership and copyright in any offers and cost estimates submitted by the seller as well as in the drawings, figures, calculations, brochures, catalogues, models, tools and other documents and auxiliary means provided to the client. The client shall not be entitled to make these items accessible to third parties, neither as such nor with regard to their content, to publish them, use or reproduce them or allow their use or reproduction by third parties without the express approval of the seller. Upon request of the seller, the client shall completely return these items to the seller and destroy any copies made if the client no longer needs them in their ordinary course of business or if negotiations do not result in the conclusion of a contract.
3. Prices and payments
The prices shall apply for the scope of services and delivery described in the order confirmations. Additional or special services shall be separately charged. The prices are principally in Euro and ex works prices plus the legally applicable VAT unless another currency or other deviating terms are agreed upon.
Invoice amounts shall be due and payable at the latest within 30 days without any deduction unless anything else was agreed upon in writing. For the date of payment, receipt by the seller shall be decisive. If the client does not pay on maturity, interest in the amount of 5% p.a. shall have to be paid on the outstanding amounts as of the maturity date. The assertion of higher interest and further damages in case of default shall remain unaffected hereof.
Offsetting with counterclaims of the client or the retention of payments due to such claims shall only be admissible to the extent that such counterclaims are undisputed or were legally found.
The seller shall be entitled to effect or render outstanding deliveries or services only against advance payment or provision of a security if the seller gains knowledge of circumstances that are suited for considerably affecting the client's creditworthiness and due to which the payment of the seller's outstanding claims from the respective contractual relation (including those from other individual orders subject to the same framework agreement) by the client is put at risk after conclusion of the contract.
4. Delivery and delivery time
At the seller's discretion, deliveries shall be effected ex works or ex warehouse for account of the client.
Without prejudice to the seller's rights resulting from any default of the client, the seller shall be entitled to request an extension of delivery or service periods or a postponement of delivery and service periods by the period during which the client does not fulfil the contractual obligations towards the seller.
The seller shall not be liable for impossibility of delivery or for delays of deliveries to the extent that these are caused by force majeure or other events which cannot be foreseen at the time of conclusion of this contract (e.g. breakdowns of any type, problems with regard to the procurement of materials or energy, transportation delays, strikes, legal lock-outs, lack of workforces, energy or raw materials, problems with regard to the procurement of required official approvals, regulatory action or the overdue or wrong deliveries by suppliers or deliveries by suppliers that are not in time) for which the seller is not responsible. If events like these make the delivery and performance particularly difficult or impossible for the seller and the impediment is not only of a temporary duration, the seller shall be entitled to rescind from the contract. In case of impediments of temporary nature, the deadlines for delivery or services shall be extended or postponed by the duration of the impediment plus an appropriate start-up period. The seller shall immediately inform the client about the circumstances of the delivery delay and the expected new date of delivery on a regular basis, whereupon in that case, an e-mail shall be sufficient for satisfying the written form requirement in deviation from section 2.3. of these contractual conditions. To the extent that the acceptance of the delivery or service is not reasonable for the client as a consequence of the delay, the client shall be entitled to rescind from the contract by means of an immediate written declaration to the seller.
5. Place of fulfilment, shipment, transfer of risk, acceptance
Unless anything else is determined, the place of fulfilment for all obligations from the contractual relation shall be Langenfeld (Rhineland).
The choice of the way of transportation, type of shipment and packaging shall be subject to the obligatory discretion of the seller according to the agreed delivery conditions.
The risk shall be transferred to the client at the latest with the handover of the object of delivery to the carrier, freight forwarder or other third party commissioned with the shipment (whereupon the beginning of the loading process shall be decisive). This shall also apply in case of partial deliveries, if a freight-free delivery is agreed upon or if the seller has also taken over other services (e.g. shipment). If the shipment or handover is delayed as a consequence of circumstances caused by the client, the risk shall be transferred to the client on the day when the object of delivery is ready for shipment and the seller has notified the client thereof.
Storage costs after the transfer of risk shall be borne by the client.
The shipment shall only be insured against theft, breakage, transport, fire and water damages or other insurable risks by the seller at the express request of the client and at the client's expenses.
If an acceptance must take place, the object of purchase shall be regarded as accepted if
• the delivery is completed and the seller has notified the client of this upon reference to the notional acceptance according to this section 5.6. and has requested the client to accept the goods,
• twelve working days have passed since delivery or if the client has started using the object of purchase and in this case six working days have passed since delivery, and
• the client has not effected the acceptance within this period for another reason than a defect notified to the seller which makes the use of the object of purchase impossible or essentially impairs it.
The provision of samples prior to or on the occasion of the purchase conclusion does not lead to a "purchase by sample" being agreed upon, i.e. the samples are only illustrative samples which serve for showing the approximate quality of goods. No particular and/or essential characteristics are agreed by this.
7. Product quality
Principally, only the quality described in the respective specification and the seller's safety data sheet shall be valid. Any other product descriptions such as those in technical data sheets, public statements, blurbs or advertisements shall not represent quality information regarding the object of purchase and shall be regarded as unbinding information. The application-related advice of the seller in speech, writing and by experiments is provided to the best of the seller's knowledge but shall only be regarded as unbinding information, also with regard to any possible protective rights of third parties, and shall not release the client from own examinations of the products delivered by the seller with regard to their suitability for the planned processes and purposes. The application, use and processing of the products take place out of the control of the seller and are therefore solely subject to the client's responsibility.
The situation on the market for raw materials and the advances made in the areas of technology, science and research mean that among others it is necessary for the seller to change the production process and/or that alternative raw materials have to be used for the creation of a product.
In the case of a currently existing business relationship, the seller will promptly inform the principal of all essential changes to the production process and/or the raw materials that are used insofar as the changes bring about an essential change to the product attributes according to the seller's standard of assessment.
8. Warranty, material defects
The warranty period shall regularly amount to 1 year as of delivery or - if an acceptance was made - as of the acceptance, in consideration of the following aspects, in particular section 8.5.
The delivered goods shall be carefully examined immediately after delivery to the client or to third parties appointed by the client. With regard to obvious defects or other defects which would have been obvious in an immediate careful examination, they shall be regarded as being approved by the client if the seller does not receive a written notice of defects within seven working days after delivery. With regard to any other defects, the objects of delivery shall be regarded as being approved by the client if the notice of defects is not received by the seller within seven working days after the time when the defect was identified. If the defect was recognisable for the client already earlier under normal use, such earlier point in time shall be decisive for the beginning of the complaint period. Upon request of the seller, any criticised object of delivery shall be sent back to the seller carriage paid. In case of a justified notice of defects, the seller shall reimburse the costs of the most economical way of transport. This shall not apply if the costs increase since the object of delivery is located somewhere else than at the place of intended use.
In case of material defects of the delivered items, the seller shall first be obliged and entitled to repair or deliver substitutes at the seller's choice to be made within an appropriate period of time. In case of failure, i.e. impossibility, unreasonableness, reject or inappropriate delay of the repair or substitute delivery, the client shall be entitled to rescind from the contract or to reduce the purchase price in a reasonable amount.
If a defect is based on a fault on part of the seller, the client shall be entitled to request an indemnity under the conditions defined in section 10 of these sales conditions.
The seller distributes chemical products, the proper functionality of which is decisively influenced by factors such as the respectively limited durability, correct dosage etc.
A warranty obligation of the seller is therefore omitted if the client has not properly taken these factors into consideration; on this, cf. also section 7. The warranty shall also be omitted if the client modifies the object of delivery without the seller's approval or has it changed by third parties and if this makes the removal of defects impossible or unreasonably harder. In any case, the client shall bear the additional costs for the removal of defects caused by the modification.
9. Protective rights
In accordance with this section, the seller warrants that the object of delivery is free of any commercial protective rights or copyrights of third parties. Any contractual partner shall immediately notify the other contractual partner in writing if any claims due to the violation of such rights are asserted towards them.
If the object of delivery violates any commercial protective right or copyright of any third party, the seller shall modify or exchange the object of delivery at the seller's discretion and expenses in such a way that no rights of third parties are violated anymore but the object of delivery still fulfils the contractually agreed functions or shall procure a right of use for the client by concluding a licence agreement. If the seller does not succeed in this within an appropriate period of time, the client shall be entitled to rescind from the contract or to reduce the purchase price in an appropriate amount. Any claims for damages of the client shall be subject to the restrictions of the following standard of these general sales and delivery conditions.
If products of other manufacturers which are delivered by the seller violate law, the seller shall at own discretion either assert any claims against the manufacturers and pre-suppliers on the account of the client or assign them to the client. In these cases, claims against the seller shall only exist according to this standard if the enforcement of such claims against the manufacturer and pre-supplier in court was unsuccessful or has no prospect of success, e.g. because of insolvency.
10. Liability for damages for culpability
The seller's liability for damages for any legal reason whatsoever, in particular because of the impossibility, default, defective or wrong delivery, breach of contract, breach of duties in contract negotiations and unlawful act shall be restricted according to this section 10 to the extent that culpability plays a role for this, respectively.
The seller shall not be liable in case of simple negligence of the seller's bodies, legal representatives, employees or other agents unless a violation of essential contractual obligations is given. Essential contractual obligations are obligations to deliver the object of delivery free of material defects on time as well as consulting, duties of protection and care which shall allow the client to use the object of delivery as contractually intended or which aim at protecting life and limb of personnel of the client or the protection of the client's property against considerable damages.
To the extent that the seller is principally liable for damages according to section 2 of this clause, this liability shall be limited to damages which the seller has foreseen as a possible consequence of a breach of contract when the contract was concluded or which the seller should have foreseen with the due diligence. Indirect damages and consequential damages resulting from defects of the object of delivery shall only be replaceable if such damages must typically be expected with the intended use of the object of delivery.
In case of liability for simple negligence, the seller's duty of replacement for material defects and any resulting financial damages shall be limited to an amount of one million USD as per case of damage (corresponding to the current limit of liability of the seller's product liability insurance or liability insurance), even if the matter is a breach of essential contractual obligations.
The seller shall regularly not be liable in cases where the client has not properly taken into consideration the respectively applicable product-related factors such as e.g. the limited durability of the product etc. (cf. section 7 and 8.5).
The above exclusions of liability and restrictions shall be applicable to the same extent in favour of the bodies, legal representatives, employees and other agents of the seller.
To the extent that the seller provides technical information or advice and these information or advice are not part of the due and contractually agreed scope of services, this shall regularly take place free of charge and upon exclusion of any liability.
The restrictions of this section 10 shall not apply for the seller's liability for wilful conduct, for guaranteed quality features, for injuries of life, body or health or under the product liability act.
11. Retention of title
The seller retains the title in any goods delivered by the seller until they are completely paid up. For this, all deliveries shall be regarded as one related delivery transaction. On open account, the retained property shall be considered as a security for balance claims.
If the goods are connected with other items for one uniform item by the client and if such other item must be regarded as the main item, the client shall be obliged to proportionally transfer co-ownership to the seller to the extent that such main item belongs to them. If the client resells the delivered goods as intended, the client hereby transfers any claims against the purchasers with all ancillary rights to the seller already now until complete payment of all claims of the seller.
If the seller sees the enforcement of the seller's claims endangered, the client shall be obliged to inform the third-party buyers about the transfer at the request of the seller and to inform the seller as necessary for the assertion of rights and to submit the respectively required documents. The client shall immediately inform the seller about third party access to goods subject to the retention of title and transferred claims.
The seller shall release the securities held to the extent that they exceed the claims to be secured by more than 20% all in all.
It shall be inadmissible to offer or deliver substitute products instead of the seller's products with reference to these products and to link product designations of the seller to the word "substitute" in price lists and similar business documents, regardless of whether such product designations are protected or not, or to compare them with designations of substitute products. It shall also be inadmissible to use product designations of the seller, in particular trademarks of the seller, in the utilisation of products of the seller for production purposes or in the further processing on goods or on packages or in the related print documents and advertising materials without the previous approval of the seller, in particular as a component information. The delivery of products under a trademark shall not be regarded as the consent to use such trademark for the products made thereof.
13. REACh Regulation
If the client announces an utilisation according to art. 37.2 of the (EC) Regulation 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACh Regulation) which requires an updating of the registration or of the substance safety report or which results in another obligation according to the REACh Regulation, the client shall reimburse any demonstrable expenses incurred by the seller in this regard to the seller.
The seller shall not be liable for delays in delivery which result from the announcement of such use and the fulfilment of the corresponding obligations of the REACh Regulation by the seller. If the seller is not able to include such use as an identified use for reasons of health or environmental protection and if the client still intends to use the goods in that way which the seller advised against, the seller shall be entitled to rescind from the contract.
14. Final provisions
The place of jurisdiction for any litigations resulting from the business relation between the seller and the client shall be Langenfeld (Rhineland) or the headquarters of the client at the seller's discretion. For suits against the seller, Langenfeld (Rhineland) shall be the exclusive place of jurisdiction. Mandatory legal provisions regarding exclusive places of jurisdiction shall remain unaffected hereof.
The relations between the seller and client shall exclusively be subject to the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
To the extent that this contract or the general sales and delivery conditions contain loopholes, these loopholes shall be filled by the legally effective provisions which the contractual partners had agreed upon according to the economic objectives of the contract and purpose of these general sales and delivery conditions if they had known about such loopholes.
The client takes note of the fact that the seller saves data from the contractual relation according to § 28 of the Federal Data Protection Act (BDSG) for the purpose of data processing and reserves the right to transmit such data to third parties to the extent that this is necessary for the fulfilment of the contract.