General terms of sale and delivery Oskar Berg GmbH / Oskar Berg Basischemikalien GmbH
For contracts concluded with merchants and enterprises effective from august 1st 2020
All sales contracts, including future sales contracts concluded by Oskar Berg GmbH / Oskar Berg Basischemikalien GmbH as the vendor, are based on the following general terms and conditions of sale and delivery. All general terms and conditions of business, clauses or amendments by the buyer or an agent are expressly declined. They shall only form part of the contract if recognised by the vendor in writing. This shall also apply if the vendor does not expressly contradict this again after receipt of a confirmation or completes the delivery without reservation. In addition, the currently valid version of INCOTERMS shall apply.
Objections, cancellations, terminations and the setting of deadlines of both contract parties must be made in writing and signed and exchanged in original form, or by fax, in order to be effective.
2. Offers, deals and prices
Verbal offers, promises, alterations to contracts and agreements on the part of the vendor’s employees are subject to change and non-binding. They require written confirmation to be effective. This can only be waived in writing. Only commitments or agreements in writing or confirmed by fax are binding.
Descriptions of goods and statements regarding quality, as well as information supplied by the vendor in respect of the suitability and use of the goods, are not to be regarded as a warranty or guarantee of quality.
The weight at the time of dispatch shall apply to the calculation of the purchase price.
3. Delivery and performance/deadlines
In the event of a delay in delivery, the buyer is not entitled to assert claims for damages caused by delay if the delay has not been caused or justified intentionally or is the result of gross negligence. In any case, in the case of slight negligence, the claim for damages is limited to the typically foreseeable damage as a result of the delay.
If a delivery is delayed as a result of unforeseen circumstances of any kind, for example by transport problems, machine damage, illness, industrial disputes, breakdowns or force majeure, the deadlines shall be extended by an appropriate amount. This shall also apply if these circumstances arise even after the vendor was behind schedule. The vendor shall not have to reimburse the costs incurred by unforeseen delays of this kind.
All sales are subject to the correct and punctual supply by the vendor’s own primary supplier, as well as the safe arrival of the goods to be delivered. The vendor’s stock reserve contract may likewise contain a clause relating to supplies to themselves.
The vendor is entitled to make partial shipments in part amounts reasonably acceptable for the buyer in commercial transactions and the buyer shall pay for the corresponding partial shipments. All partial shipments under a transaction count as special business operations.
4. Payment, arrears, offsetting/right of retention
In the event of default or payment the vendor is entitled to charge default interest of 10 percentage points above the respective base rate of the European Central Bank. Proof of a higher level of damage on our part is admissible.
The buyer is not entitled to offset claims against claims by the vendor or to assert a right of retention, unless their counter-claim is found to be undisputed or legally binding.
Should, after the signing of the contract, circumstances become known to the vendor that place doubts on the creditworthiness of the buyer or the fulfilment of their obligation to perform, or should the buyer fall into arrears of payment or in their fundamental obligations to co-operate by more than 7 days, despite a deadline being set, the vendor is entitled to postpone the completion of his obligations until all outstanding claims have been paid in full and to demand advance payment of all claims from all contracts entered into with the buyer, including bills of exchange presented by the buyer.
Should the buyer not conform with a demand for advance payment justified in accordance with clause 4.3 within 5 working days, then the vendor shall be entitled to decline fulfilment of all signed contracts and – after setting a period of grace of a further 5 days – to decline completion of all contracts not yet completed and, in addition, to demand damages for, or to withdraw from, them.
The acceptance and call-off order for the agreed delivery is a fundamental primary obligation for the buyer.
5. Right of retention and assignment of claims
The goods supplied shall, as goods subject to the rights of retention, remain the property of the vendor until complete settlement of the purchase price demands, as well as future claims, claims not yet due, or contingent claims resulting from mutual trading relations.
The processing or treatment of goods subject to the right of retention is conducted at all times on the orders of the vendor, without liabilities for the vendor resulting from this. The vendor is entitled to ownership of the newly created item. If goods subject to retention of title are treated, processed, blended, mixed or combined with other goods that do not belong to the vendor, the vendor is entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods at the time of treatment, processing , etc. The buyer now transfers to the vendor their co-ownership rights arising in the cases of the preceding sentence, up to the amount of the invoice value of the reserved goods. The new goods shall be stored for the vendor by the buyer free of charge.
The buyer is authorised, subject to clause 5.7, to sell the goods subject to retention rights within the scope of a correct business operation retaining the right of retention, but they not permitted to offer them as a security or bond. The buyer hereby assigns to the vendor all claims to which they are entitled from a resale of the goods subject to retention of title or from the treatment, processing, blending, mixing or combining of the goods resulting from No. 5.2. This also applies if the goods are sold together with other goods that do not belong to the vendor at a total price. If a third party has acquired ownership or co-ownership rights to the goods due to legal regulations as a result of treatment, processing, blending, mixing or combining, the buyer also assigns to the vendor the claims they have against the third party now and in the future. Assignments within the meaning of this paragraph shall always only take place up to the amount of the invoice value of the goods subject to retention of title. The buyer is authorised, until this is revoked by the vendor, at any time to call in the assigned claims which, in the event of arrears, is permissible with a single claim resulting from the business relationship.
The value of the goods subject to retention rights in the sense of the above paragraphs shall always be regarded as the price the vendor has charged the buyer for the goods (the invoice price).
At the request of the buyer, the vendor shall release its securities as it chooses and in as far as their value exceeds the secured claims by more than 10%.
If the co-operation of the buyer is necessary for the right of retention to be effective, as in the case of registrations required by the law of the buyer’s country, the buyer must take action accordingly. This is a fundamental, major obligation.
If the buyer is in arrears with payment, the vendor can prohibit them from selling the goods subject to retention rights, as well as their treatment, processing, combination, bonding or mixing with other goods, as well as their removal, as well as demanding the surrender of the goods subject to retention rights or the goods subject to retention rights that have been processed and treated. The buyer shall notify without delay of any seizure by third parties of goods to which the vendor has rights in accordance with the above regulations. The same applies with regard to claims that have been assigned in accordance with the above paragraphs. The buyer must bear and reimburse any intervention costs that arise.
In the event of behaviour on the part of the buyer in contravention of this contract, especially payment arrears, the vendor, after setting an appropriate deadline, shall be entitled to demand the return of the goods sold.
The enforcement of a right of retention, especially a demand for the return of the goods, shall be regarded as a withdrawal from the contract. The vendor shall be entitled, regardless of withdrawal from the contract, to demand claims for damages in accordance with general regulations.
6. Warranty/complaint/carrying of risk
The goods are to be inspected immediately after delivery at the agreed point of delivery, where this is possible and reasonable. The findings of the respective transport companies shall supply refutable proof of the quality assessment, including for the relationship of the parties to one another.
If deficiencies cannot be established by a commercial and sensory inspection, the buyer must take representative samples for the purpose of examination and/or commission an expert to conduct an urgent examination.
The buyer must inform the vendor immediately of any complaints. Insofar as defects or deviations can be ascertained without involving experts, the notification in the case of intra-German transactions must be made at the latest within 3 business days, in the case of international transactions at the latest within 5 business days from the date of delivery or release at the agreed location. If the assistance of an expert is necessary, the samples shall be delivered to the expert within 3 days of delivery for intra-German trade and within 5 business days of delivery for international trade. A complaint must be made no later than 3 working days after receipt of the results of the investigation by the buyer, at the latest within 3 weeks of the arrival of the goods at the contractual destination, unless the examination by an expert required a longer period of time. If a defect later becomes apparent, which was not apparent at the time of delivery or release of the goods at the agreed location or was not apparent with the assistance of an expert within the aforementioned time limits (hidden defect), the buyer must notify a corresponding complaint to the vendor within the above-mentioned time limits from the day on which they became aware of the defect.
In order to be effective, complaints must be made in writing or fax, with an exact listing of the individual deficiencies that constitute the complaint.
Guarantee and damage claims against the vendor are excluded in the case of recognisable deficiencies, or those established by experts, if the buyer, prior to completion of the inspection for damage or deficiencies, handles the goods supplied, or parts of them (with the exception of taking samples for examination), or removes them from the place of inspection, opens, treats, processes or alters them in any other way or sends them on. If the vendor is entitled to compensation from third parties in such cases, the buyer shall indemnify them.
The buyer shall secure claims for recourse against the respective transport drivers by registering complaints in the transport documents in good time or submit complaints in writing in any other way, as well as having them confirmed by the driver if possible. If these obligations are culpably violated or if the documents relating to the complaint against the vendor’s transport driver are not submitted within 2 weeks upon request, the claims of the buyer based on the specific complaint shall be forfeited.
If payment against documents is agreed, complaints shall not entitle the buyer to refuse or delay the acceptance of the documents and the payment of the purchase price.
If there is a deficiency, the vendor entitled to choose whether to fulfil the contract in the form of a replacement delivery or to rectify the deficiencies. In both cases the vendor shall bear the cost of all necessary expenses, especially transport and return transport, handling, labour and material costs, providing these are not increased by the purchased item being taken to a place other than the place of delivery. If a total of two or more replacement deliveries or attempts at supplementary performance are unsuccessful, or if the vendor delays the replacement delivery or supplementary performance to an inappropriate degree, the buyer is entitled to their general legal rights, without a further deadline having to be set. In the case of a correct replacement delivery, claims for damages are excluded, in so far as they do not apply to the buyer’s costs when returning the goods or in subsequent performance.
7. Liability, limitation
Claims for damages resulting from and in connection with the sales contract are based on legal regulations regarding the reason and amount, if
a) they are based on an intentional or grossly negligent breach of contract or on injury to life, body or health;
b) the vendor can be accused of a culpable breach of essential contractual obligations, i.e. such contractual obligations, the fulfilment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely (e.g. the delivery of defect-free goods); in the case of simple negligence, liability for damages shall be limited to the damage typically occurring that is foreseeable at the time of conclusion of the contract;
c) the vendor has given a special guarantee or there is a fraudulent promise of quality or a fraudulent concealment, or
d) the claims are based on compulsory legal regulations especially the Product Liability [Produkthaftungsgesetz] or the principles of the entrepreneur’s recourse (§ 478 BGB/[Bürgerliches Gesetzbuch] (German Civil Code)). Otherwise, the liability for damages of the vendor and their agents, especially for their employees and those of their agents, is dependent on fault and excluded in the case of slightly negligent behaviour or behaviour that is not at fault.
7.2.Warranty claims and/or claims for damages against the vendor arising from or in connection with the contract concluded shall be subject to a limitation period of no more than one year insofar as they are based on material defects and, to the extent that they are based on defects in title, of no more than two years from the complete delivery/partial delivery of the goods to the buyer. The statutory warranty period applies to claims for damages in accordance with points 7.1 a), c) and d). If the goods are not accepted promptly after a release or another notification of the possibility of acceptance, the period of limitation commences from the receipt of the notification to the buyer.
8. Place of performance, place of jurisdiction, applicable law
The place of performance for the delivery is the agreed place of delivery or loading. In the absence of any other agreement it is in Duisburg and for the payment of the purchase price it is Duisburg.
The law in force in the Federal Republic of Germany in the current version applies, to the exclusion of the law of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG).
All disputes resulting from, or in connection with the contract, even in as far as they apply to the validity or termination of the contract, shall be decided by the ordinary courts in Duisburg. The vendor can also bring an action against the buyer at the place of their registered office. Statutory provisions that have precedence, in particular regarding exclusive responsibilities, remain unaffected.
General conditions of purchase Oskar Berg GmbH / Oskar Berg Basischemikalien GmbH
effective from August 1st 2020
scope and applicability
All deliveries, services and offers from our suppliers are made exclusively on the basis of these General Terms and Conditions of Purchase. These terms are integral to all contracts we sign with our suppliers for the goods or services that are offered by them. They also apply to all future deliveries, services or offers to the client, even if they are not separately agreed upon again.
Supplier or third-party terms and conditions do not apply, even if we do not separately object to their applicability in each instance. Even if we refer to a written document which contains or makes reference to any such supplier or third-party terms and conditions, this may not be construed as indicating any acceptance of those terms and conditions.
2. Orders, offers and commissions
Our offers are subject to change and non-binding unless we have expressly designated them as binding for a certain period.
A delivery contract is only concluded when we confirm the supplier’s offer in writing or accept the delivery without reservation.
We are entitled to terminate the contract at any time by a written declaration stating the reason for doing so, if we can no longer use the products ordered in our business operations due to circumstances that occurred after the contract was concluded. In this case, we shall reimburse the supplier for the partial service they have provided.
3. Prices, payment terms, invoice information
The price shown in the order confirmation is binding.
In the absence of any deviating written agreement, the price includes delivery and transport to the shipping address specified in the contract, including packaging and transport and liability insurance.
If the price that is agreed upon does not include the packaging and the remuneration for packaging – not for packaging that is only made available on loan – is not determined explicitly, this shall be charged at the demonstrable cost price. At our request, the supplier must take back the packaging at their own expense.
Unless otherwise agreed, we will pay the purchase price within 14 days of delivery and receipt of the invoice with a 2% discount or within 30 days net. For the timeliness of payments owed by us, the date on which our bank receives our payment transfer order is sufficient.
Our order numbers, the delivery amounts and the delivery address must be indicated on all order confirmations, delivery documents and invoices. If any of this information is missing and this causes a delay in our processing in connection with our normal transaction of business, the payment deadlines set forth in paragraph 4 are extended by the period of the delay.
4. Delivery time and delivery, transfer of risk, retention of title
The delivery time (delivery date or deadline) indicated by us in the order or otherwise under these General Terms and Conditions of Purchase is binding. Earlier deliveries will not be accepted.
The supplier shall give us prompt written notice if circumstances arise or become evident that may prevent the delivery time from being adhered to. They shall inform us immediately of the new expected delivery time.
If the date, on which the delivery must occur at latest, is stipulated in the contract, the supplier is in default at the close of business on that day without any further notice by us being required for this purpose.
In the event of a delay in delivery, we are fully entitled to legal claims, including the right to withdraw from the contract and to claim damages instead of performance after a reasonable grace period has expired without result.
In the event of delays in delivery, we are entitled, after prior written warning to the supplier, to demand a contractual penalty of 1%, maximum 5%, of the respective order value for each week of delay in delivery commenced. The contractual penalty must be offset against any further damages for default payable by the supplier.
Partial deliveries/services shall only be accepted by us with prior written approval.
The supplier must pack, label and ship dangerous products in accordance with the relevant statutory provisions.
The risk, even if such partial deliveries are agreed to, only passes to us when the goods are handed over to us at the agreed place of destination.
Retention of title by the supplier is valid only where it relates to our payment obligation for the respective products to which the supplier retains title. All forms of expanded or extended retention of title are not permitted.
5. Warranty claims
In the case of defects, we are entitled to unlimited legal claims. In deviation from this, however, the warranty period is 36 months.
In particular, the vendor is liable for ensuring that the goods have the contractually agreed quality upon transfer of risk.
Our duty of inspection within the scope of the statutory requirements is limited to an incoming goods inspection with an external assessment, including the delivery papers. In addition, it depends on the extent to which an investigation is feasible, taking into account the normal course of business. Our obligation to report defects that are subsequently discovered remains unaffected. In all cases, it is sufficient to examine the goods and submit a complaint (notification of defects) within a reasonable period.
If there is a material or legal defect, we are entitled to demand that the supplier either rectify the defect (subsequent improvement) or deliver a defect-free item (replacement delivery). In this case, the supplier shall bear all the costs required for the corrective action or replacement of the defective item. If the supplier does not meet their obligation to supplementary performance, at our discretion within a reasonable period set by us we can remedy the defect ourselves and demand reimbursement of the expenses required from the supplier. If the subsequent performance by the supplier has failed or is unreasonable for us (in particular because of particular urgency or the threat of disproportionate damage), no deadline is required. The supplier must be informed immediately, if possible in advance.
We do not waive warranty claims by accepting or approving samples or specimens submitted.
6. Product liability, intellectual property rights
The supplier is responsible for all claims asserted by third parties for personal injury or property damage that can be traced back to a defective product delivered by them. They shall release us from the liability resulting from this. If we are required to issue a recall of the item to third parties due to a defect in a pr
The supplier shall take out product liability insurance with coverage of at least EUR 5 million at their own expense. The supplier shall send us a copy of the liability policy at any time upon request
The supplier guarantees that the products delivered by them do not have any third-party intellectual property rights (e.g. patents, patent applications, utility models, designs, trademarks and copyrights) in countries of the European Union or other countries, in which they manufacture the products or has them manufactured, as well as that they do not violate any legal or contractual provisions for the protection of business and trade secrets of third parties.
The supplier shall exempt us from all claims that third parties may raise against us due to a violation in accordance with paragraph 3 above and reimburse us for all necessary expenses in connection with this claim. This claim shall not apply if the supplier furnishes proof that they are neither responsible for the legal infringement nor that they could reasonably have had knowledge when exercising due diligence at the time of delivery.
The supplier shall keep the conditions of the order in confidence, as well as all information and documentation provided for this purpose (with the exception of publicly available information) for a period of two years from the conclusion of the contract and to use same only for the execution of the order. After completing inquiries or processing the orders, the supplier must promptly return this to us upon request.
The supplier may not refer to the business relationship in advertising material, brochures, etc. without our prior written consent.
The supplier is not entitled to assign their claims from the contractual relationship to third parties. The above does not apply in the case of monetary claims.
9. Place of performance, place of jurisdiction, applicable law
The place of performance for both parties and the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is Duisburg. Statutory provisions that have precedence, in particular regarding exclusive responsibilities, remain unaffected.
Contracts concluded between us and the supplier are subject to the law of the Federal Republic of Germany, under exclusion of the United Nations Co.