(hereinafter called “eurochem”
Effective from: September 2018

1 Scope, written form

1.1 The deliveries of goods and provision of services (hereinafter termed “Deliveries”) by eurochem, also in particular, related advisory services and information, are made to contractors (hereinafter termed “Client”) solely on the basis of these terms and conditions of sales and delivery (hereinafter termed “T&Cs”). This also applies to all future business relationships, even if the T&Cs are not explicitly agreed again.

1.2 Should the delivery or performance by eurochem not be made to the Client but to an affiliated company of the Client as defined in Sections 15 et seq. of the Stock Corporation Act [AktG], the T&Cs shall also apply to these companies.

1.3 These T&Cs apply exclusively; any of the Client’s provisions that conflict with or differ from these T&Cs shall not form part of the contract, unless eurochem has expressly approved their application in writing. These T&Cs shall also apply if, eurochem has performed delivery to the Client unconditionally in full awareness that the buyer’s provisions conflict with or differ from these T&Cs.

1.4 Any clarifications by eurochem regarding this contract, any amendments to the contract and ancillary agreements must be made in writing to be effective (also by fax, email). Any waiver of this requirement can only be given in writing.

 

2 Offer, conclusion of contract

2.1 If the Client sends eurochem a request for the delivery of products, eurochem will, after considering and evaluating the request internally, send the Client a written quotation in accordance with Section 145 of the German Civil Code [BGB] or will decline the request. The quotation itself is at no charge to the Client and not binding. Similarly the request is not binding upon eurochem.

2.2 The Client may accept this quotation within the time specified in the quotation (order). The quotation is binding upon eurochem for this time. Verbal placement of orders shall be confirmed in writing without delay; otherwise they are of no legal consequence.

2.3 The contract between the parties for the delivery of the ordered goods comes into force upon written acceptance of the order by eurochem or by means of an order confirmation from eurochem.

2.4 After delivery of the goods, eurochem is not obliged to ensure a further delivery of the subject of the contract with the same specifications and qualities, unless the Parties agree otherwise in writing.

 

3 Prices, terms of payment, entitlement to set-off

3.1 The prices listed by eurochem in the quotation are binding upon both parties, unless otherwise expressly agreed in writing. In the event that the parties have not agreed otherwise in writing, the prices are ex works excluding costs for packaging, shipping and customs clearance. eurochem will issue the Client with a separate invoice for these. A deduction of cash discount requires special written agreement.

3.2 Unless otherwise indicated in the order confirmation, the price is net (without deductions) excluding statutory value-added tax. Payment is due within 14 days from the invoice date. If the purchaser fails to make payment by the agreed due date, they will be in default; there is no requirement for a special reminder for payment. The statutory regulations concerning the consequences of default in payment apply.

3.3 In the event that eurochem fails to send the Client a verifiable invoice or if the invoice does not meet legal requirements, the Client shall return the invoice in the original to eurochem without delay and make a corresponding complaint. The price is then due for payment within 15 days of the date of the corrected invoice.

3.4 The Client is not entitled to set-off unless their counterclaims have been upheld by a court, are uncontested or acknowledged by eurochem. Section 354a of the German Commercial Code (HGB) remains unaffected.

3.5 Moreover, the Client is only entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.

3.6 If there are any defects, the Client is not entitled to refuse performance, unless the delivery is obviously defective. In such a case, the Client is only entitled to retention provided the purchase price withheld is in reasonable proportion to the defects and the anticipated costs for rectification in particular for removal of defects.

 

4 Delivery time, shipping, transfer of risk, delivery quantity, packaging

4.1 The start of the time for delivery/performance given by eurochem presumes clarification of all technical queries and availabilities. If a requirement for performance of the contract is cooperation by the Client, a condition of eurochem’s adherence to the obligation of delivery/performance is that the Client also meets their obligation properly and in a timely manner. Right is reserved to defence of non-performance of the contract.

4.2 Delivery and performance times shall only be binding if they have been expressly agreed as such. Subject to the details given in the order confirmation, a delivery time is also considered to be agreed if the Client indicates a delivery date in the request for a quote (cf. Clause 2.1) and eurochem tacitly accepts this.

4.3 Unless otherwise indicated in the order confirmation from eurochem, delivery is agreed ex works. In this case, the transport risk is transferred to the purchaser upon delivery ex works, irrespective of at whose request, to whose account and from which location the shipment was dispatched. Provided the Client wishes and this is agreed expressly in writing, eurochem shall have the delivery covered by a transport insurance policy; costs incurred in this respect shall be borne by the Client.

4.4 eurochem has the right to make partial deliveries to a reasonable extent, provided the Client would not be expecting delivery in full considering the nature of the service rendered. Early deliveries are to be agreed by the Parties beforehand; the Client however shall accept deliveries slightly in advance of the date.

4.5 If the agreed delivery date is not merely negligibly exceeded, the Client shall grant eurochem a reasonable grace period for delivery. If eurochem fails to deliver the goods within the grace period, the Client is entitled to withdraw from the contract. eurochem shall be notified of withdrawal in writing. In the event of withdrawal, the Client is entitled to purchase goods in replacement from a substitute vendor who is able to deliver similar-quality goods within a reasonably short time. The Client shall however comply with the obligation to mitigate losses. eurochem shall bear the additional costs incurred by the replacement delivery. The Client shall provide eurochem with proof of the additional costs by means of verifiable documentation. The additional costs to be borne by eurochem shall be capped at an amount of 5% of the original net price of the goods in this order (cf. Clause 3.1).

4.6 If delivery times cannot be observed due to circumstances beyond the control of eurochem or their suppliers, in particular force majeure, industrial or traffic disruption, fire, floods, strike, shortages of energy and raw materials, the delivery times shall be extended upon agreement by the Parties. If the hindrances last longer than four weeks due to the above circumstances, eurochem or the Client may withdraw from the contract provided maintaining the contract is unreasonable. In this case, there are no reciprocal claims for damages.

4.7 Customary technical methods of measurement apply when calculating the delivery quantity. If the Client submits a complaint about excess or reduced quantities, the Client shall provide eurochem with appropriate proof of this, e.g. with a written weighing log. eurochem will deliver the missing quantities without delay; however the Client shall accept negligibly reduced quantities that are within the usual margins of tolerances for the sector. In the case of only negligible excess quantities, the Parties shall come to an agreement as to whether the excess quantity should be returned to eurochem. eurochem shall bear the costs for returns.

4.8 The Client shall dispose of packaging of the delivered goods at their own expense and in accordance with good professional practice.

 

5 Client’s failure to accept delivery, obligations to cooperate

5.1 If the Client fails to accept delivery or if they culpably violate other obligations to cooperate or if eurochem’s performance and/or delivery is delayed for other reasons attributable to the Client, eurochem is entitled to require compensation for the damages arising, including any additional expenses. This does not affect further claims or rights.

5.2 Insofar as the conditions in Clause 5.1 of these T&Cs exist, the risk of accidental destruction or deterioration of the goods passes to the Client at such time when the Client fails to accept delivery or is in default.

 

6 Properties of the goods

Prior to placing an order for goods, the Parties shall agree on and define the properties, quality standards and tolerances for the goods. eurochem guarantees that statutory provisions, regulations and guidelines shall be observed in the production process of the goods.

7  Examination and notice of defects, warranty rights, warranty

7.1 The Client shall examine the goods for any variances in the agreed quality and quantity of the goods without delay, at the latest however within four working days of delivery, using random sampling; if a defect is identified, the Client shall notify eurochem of this in writing without delay, at the latest however within two working days. If the Client fails to notify eurochem or if notification is late, the goods shall be considered as approved, unless a defect is concerned that was not identifiable in the examination. eurochem shall be notified without delay after discovery of any defects that are not identifiable in the inbound goods inspection.
If the delivered goods have already been treated or processed by the Client before the end of the time for submitting claims, the Client is precluded from submitting a notice of defect with regard to all identifiable defects.

7.2 The Client bears the full burden of proof for all conditions of the right of warranty, in particular for the defect itself, for the time it is identified and for the timeliness of the notice of defects.

7.3 eurochem guarantees, in accordance with the statutory requirements, that the goods they deliver are free of defects, insofar as the goods have been properly handled, opened, used and stored at the Client’s and in accordance with the relevant technical standards.

7.4 Apart from the contractual agreements, eurochem’s product description alone shall prevail with respect to quality of the goods due under the contract; public statements, advertising, etc. by other manufacturers, suppliers or third parties however shall not apply.

7.5 Should eurochem create and deliver products in accordance with the Client’s designs or formulations, eurochem only assumes liability for the performance of the supplied products in conformance with the Client’s documentation and/or formulations. eurochem assumes no liability for fitness for the intended purpose presumed by the Client.

7.6 A merely negligible decrease in value or in fitness for purpose of the goods is not taken into consideration if there are defects. Claims by the Client’s that are based on defects also do not apply if there are merely negligible variations from the agreed quality.

7.7 If there is a defect in the goods delivered, eurochem has the option either to remedy the defect at its own expense or to make a replacement delivery or to reduce the purchase price correspondingly. If there are substantial defects, the Client is entitled to rescission. If the remedy of a defect or replacement delivery by eurochem ultimately fails or if eurochem definitively and in earnest refuses satisfaction, the Client may only demand rescission or a reduction in price, but only a reduction in price in the case of negligible defects.

7.8 eurochem is in any case entitled to examine the defectiveness of the goods locally. The Client accordingly undertakes to obtain eurochem’s consent before returning or destroying defective goods. eurochem shall bear the expenses incurred for the purpose of examination and rectification, in particular tolls, transport, labour and material costs, if there is in fact a defect for which eurochem is responsible and insofar as these costs do not increase because the goods had been introduced into a different location than the place of performance. However if a request by the Client for rectification proves to be without justification, eurochem can demand that the costs incurred be reimbursed by the Client. If the Parties fail to reach an agreement as to whether there is actually a defect, the Parties shall commission an appraisal by an expert witness. The Parties shall each bear half of the costs for the appraisal by the expert witness. The result of the appraisal by the expert witness is binding upon both Parties, unless it demonstrates considerable defects. In this case, each Party is entitled to have a further appraisal conducted at its own expense by an expert witness.

 

8 Liability

8.1 eurochem is liable in accordance with statutory regulations, insofar as the Client asserts claims for damages that are caused intentionally or through gross negligence, including those caused intentionally or through gross negligence by eurochem’s agents or vicarious agents.

8.2 eurochem’s liability for ordinary negligence – irrespective of on what legal grounds – is excluded, other than when a breach of a substantive contractual obligation is concerned. Substantive contractual obligations are obligations the very fulfilment of which is essential for the proper performance of the contractual relationship and the observance of which the Client may with good reason have confidence in and rely on, or which eurochem shall guarantee to the Client in conformance with the terms of the contract.

8.3 eurochem is not liable for misappropriate or improper use of the goods supplied.

8.4 In the event of ordinary negligence, eurochem’s liability for damages is limited to direct and foreseeable damages that typically occur and are eligible for compensation under German law. In particular, eurochem’s liability for indirect and consequential damages to the Client is excluded to the inclusion of lost income and disruption of operations, lack of business effect to the extent permissible by law.

8.5 Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability as defined by product liability law. eurochem assumes no further liability for the product other than that provided for under German law.

8.6 Any further liability on the part of eurochem for claims for damages other than provided for in the foregoing is excluded – without regard for the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, on account of other breaches of obligations or on account of claims in tort to compensation for material damages in accordance with Section 823 of the German Civil Code.

8.7 Insofar as eurochem’s liability for damages is excluded or limited, this also applies with regard to the personal liability for damages of employees, workers, staff members, (legal) representatives and vicarious agents of eurochem.

 

9  Statute of limitations

9.1 Claims against eurochem that arise from defects in quality and defects of title expire within one year from delivery or performance on the part of eurochem unless there are cases under Section 438 Subsection 1 No. 2 or Section 634a Subsection 1 No. 2 of the German Civil Code.

9.2 The foregoing statute of limitations also applies to contractual and non-contractual claims for damages by the Client that are based on a defect in the goods, unless application of regular statutory limitation (Sections 195, 199 of the German Civil Code) would lead in individual cases to a shorter limitation. Claims on account of damages to life, limb and health and cases of ordinary or gross negligence as a result of damages caused by eurochem, malice and claims against eurochem on account of the product liability law remain unaffected.

9.3 Unless otherwise expressly stipulated, the statutory provisions for the commencement of the limitation period, the suspension of expiration of the statute of limitations, the suspension and the recommencement of the limitation period remain unaffected.

 

10 Retention of title

10.1  As security for the purchase price, eurochem retains the title to all goods supplied by eurochem (hereinafter called Retained Goods) until all of eurochem’s claims for payment against the Client have been satisfied. This also applies to any claims arising in future.

10.2 If the Client is in default with payment of the purchase price, eurochem has the right to withdraw from the sales contract and to require the Client to return the Retained Goods.

10.3 In the case of seizure of the Retained Goods by a third party or other intervention by a third party, the Client undertakes to notify the third party of eurochem’s title and to inform eurochem without delay in writing so that eurochem can assert its proprietary rights in accordance with Section 771 of the Code of Civil Procedure (ZPO). Should the third party be unable to reimburse eurochem for the judicial or extrajudicial costs incurred in this regard, the Client shall be held liable.

11  Third-party property rights

11.1 Insofar as eurochem produces goods according to instructions, models or samples, which were given to eurochem by the Client, or provides deliveries, the Client shall guarantee that there is no infringement of third-party property rights by eurochem through the manufacture, use or installation of the supplied goods or provision of services. The Client indemnifies eurochem against damages from third parties. Indemnification covers all expenses that eurochem incurs in connection with the use by third parties.

11.2 Upon eurochem’s request, the Client shall provide eurochem with legal counsel or enter into any legal actions at their own expense if third-party property rights are infringed.

11.3 The statute of limitations for the claim of indemnification is two years from notice or from grossly negligent ignorance by eurochem of the circumstances justifying the claim.

 

12 Confidentiality, non-disclosure and copyright

12.1 The parties shall treat as confidential all information – to also include matters regarding operations, business transactions, expertise that has been disclosed, documents, formulations, bases for calculations, presentations, supporting documents, data, samples and the contents of orders in addition to knowledge acquired and obvious from the former, agreements on conditions and billing data – that relate to the business of the other party and/or the mutual business relationship (hereinafter called: Confidential Information) and of which one party, its agents or employees have gained knowledge in the course of the business relationship, and shall not disclose such knowledge and information to third parties.
The above-mentioned obligations apply in particular to dissemination of information to rival companies. Confidential Information for the purpose of this agreement is all information made available in verbal, written and electronic form.

12.2 The duty of confidentiality continues after termination of the business relationship. The Parties undertake to effectively oblige their employees, agents and advisors accordingly in writing to not disclose confidential information to the extent that this is legally admissible. This also applies within the legal limitations beyond the termination of any employment or contractual relationships.

12.3 eurochem reserves the right to industrial property rights (in particular patents, registered designs), copyrights and titles to data, supporting documents, sketches, drawings and software and similar that have been created and made available to the Client within the scope of performance of the contract, to which eurochem is entitled with regard to goods, illustrations, drawings, inventions, technical improvements, formulations and other documents that eurochem has supplied and developed or that are based on eurochem’s data. This also applies to such written documents marked as “confidential”. The Client needs eurochem’s express written approval before sharing with third parties.
Documents and data that are covered by copyright are to be treated as confidential in accordance with Clauses 12.1 and 12.2 of these terms and conditions.

13 Applicable law, place of performance, jurisdiction, severability clause

13.1 The Parties agree that German law shall apply to settlement of their business relationship, excluding the UN Convention on Contracts for the International Sale of Goods. Place of performance is Munich. Court of jurisdiction is Munich.

13.2 Should any provision in this standard contract be or become entirely or partially invalid, illegal or unenforceable, the validity, legality and enforceability of this contract shall remain unaffected. In this case, the Parties undertake to replace the invalid, illegal or unenforceable provisions with valid, legal and enforceable provisions that are consistent with the original intention of the invalid, illegal or unenforceable provisions and/or with which the desired business effect in the agreement is to be achieved.