for sale and delivery of
ERC Additiv GmbH ('ERC')
- All business transactions with the customer shall exclusively be governed by the following terms and conditions. They apply to business transactions with businessmen, legal entities under public law and special funds under public law. Any conflicting general terms and conditions of the customer only apply where ERC has expressly confirmed their application in writing.
- These terms and conditions also apply to all future business transactions between the parties without any express agreement, and even in cases where ERC performs the delivery or service without any reservations while being aware of terms and conditions of the customer that conflict with or are different from its own terms and conditions.
- Where these terms and conditions require the written form, this includes a transmission by fax or electronic data transfer.
2. Offers and prices
- Unless expressly otherwise agreed in writing, ERC’s offers are subject to change.
- All prices are quoted without cash discounts or other discounts ex works plus the applicable statutory value-added tax. Unless otherwise agreed, ancillary services (e.g. transfer costs) and any other expenses (e.g. transport or packaging costs, loading costs, freight costs and charges for clearance through customs) shall be paid by the customer.
- ERC will only prepare a cost estimate for the installation and commissioning at the customer's express request. It is not binding on ERC. ERC does not warrant the accuracy of the cost estimate.
- The prices quoted are based on the cost of materials and labour in effect at the time the order is confirmed. If this cost basis changes between the time the order is confirmed and the agreed time of delivery or performance, ERC is entitled to adjust the price accordingly upon the expiry of four weeks after the order confirmation. At the customer's request, ERC shall provide proof of the cost basis changes. Where this leads to an increase in prices which does not just insignificantly exceed the increase in the general cost of living or the increase in prices of similar products in the same period, the customer may rescind the agreement. It shall notify ERC of the rescission by registered mail (return receipt requested) without undue delay after having become aware of the price increase. Otherwise the rescission will not take effect. It will not take effect either where ERC, without undue delay after receiving the notice of rescission, states that it insists on performing the contract at the prices originally agreed.
- Where the period between the execution of the respective contract and its performance exceeds four months, and where ERC’s list prices have changed during that period, ERC may, instead of the price agreed between the parties, demand a price which is increased by the amount corresponding to the percentage change of the list prices without giving rise to a right of rescission for the customer unless otherwise agreed in advance.
3. Contract formation and content
- The contract is concluded when ERC has confirmed its acceptance of the order in writing or has started performing the delivery or service. Any request by ERC that one copy of the order confirmation be signed and sent back is only made to make it easier to provide documentary evidence.
- The nature and scope of ERC’s obligations is governed by ERC’s written order confirmation unless the customer has objected to the content of the order confirmation in writing without undue delay after its receipt.
- Where no limits have been set for permissible deviations in the order confirmation and there are none in specifications of the ordering party that have been expressly accepted, deviations that are customary in the industry are permitted in any case. ERC only provides a warranty (as described in Section 443 of the German Civil Code (BGB)) if it is expressly referred to as such in writing.
- Unless expressly agreed otherwise in an individual case, information on the ways in which ERC products can be processed or applied, technical information or other specifications are not the subject of the respective contract. They are provided without any legal obligation to the best of ERC's knowledge, but are not binding on ERC; models and samples are only considered approximations with respect to the analysis and properties and represent non-binding documents for illustration purposes.
- Provisions relating to export regulations:
a.) Where a required export permit is not granted or the conditions for the granting of an export permit that has already been granted are no longer met subsequently through no fault of ERC's, or where the customer is listed on a national or international sanctions list or is added to it after the execution of the contract, ERC has the right to rescind or terminate the contract. The customer shall notify ERC of any relevant circumstances in this context in writing without undue delay. The schedule shall be postponed appropriately based on the delay resulting from the subsequent review of the conditions.
b.) Where ERC exercises its right to rescind or terminate the contract specified in Section 3.5(a), the customer is liable for any indirect and/or direct damage (including loss of profits, fines, the costs of taking legal action, etc.) incurred by ERC as a consequence of the early termination of the contract unless the customer is not responsible for it. In this event, the customer is not obliged to provide the consideration and any advance payment made will be returned to it unless ERC has offset this payment against any counterclaims or unless the refund is barred by German and/or European sanctions at that time. In the latter case, the advance payment will be refunded when the sanctions have been lifted. The customer is not entitled to any other claims against ERC, in particular claims for damages.
c.) The contract objects delivered by ERC are meant to remain in the destination country agreed with the customer (as specified in the end use and end user certificate). The customer must take note of the fact that the re-export of the contract objects may be subject to the foreign trade laws and export control regulations of the Federal Republic of Germany, the country of delivery and other countries (as applicable), and that the customer may be required to obtain an export authorisation pursuant to these laws. The customer is responsible for determining the foreign trade law that is relevant to the individual case and for applying for and procuring any required authorisations.
d.) The responsibility for complying with all import and authorisation requirements and for procuring any required technical licences, operating licenses or type approvals, etc. with respect to the contract object in countries outside of Germany exclusively rests with the customer. The fact that licences, authorisations, etc. which may be required for using the goods outside of Germany are not granted does not, in particular, constitute a defect or a ground for the customer to rescind or contest the contract either. However, at the customer's request, ERC will provide support in procuring such licences, etc. by providing documents regarding the contract objects; all costs incurred in this context (e.g. for translations, notarisations, etc.) shall be borne by the customer.
4. Terms of payment
- Unless otherwise agreed, the purchase price is due and payable immediately. The relevant date is the date when the payment is received by ERC.
- If the customer is in default of payment, ERC is entitled to charge statutory interest of 9 percentage points above the respective base interest rate of the European Central Bank p.a. and a flat fee for default (Verzugspauschale) of EUR 40.00. ERC is free to claim further default damage where the applicable statutory conditions are met.
- If ERC is obliged to perform in advance, it may refuse such performance if it becomes apparent, after the execution of the contract, that its claim to consideration is jeopardised by the customer’s inability to pay. The right to refuse performance no longer applies if the consideration is received or security is provided for it. ERC may specify an appropriate period of time during which the customer, at its choice, must provide the consideration or security contemporaneously with the performance. If such period expires without result, ERC may rescind the contract. Further details are governed by Section 321 BGB.
- The customer is only entitled to rights of set-off and retention if and to the extent that its counterclaims are either reciprocal (Section 320 of the German Civil Code (BGB)) to the claims asserted by ERC or have been determined by a court without further legal recourse, have been acknowledged by ERC or are undisputed. In addition, the customer may only exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
- If and to the extent agreed, the Incoterms in effect at the time when the contract is executed apply.
- The transport route and the shipping method will be chosen by ERC. ERC will try to take the customer’s preferences into account; any required additional expenses shall be paid by the customer.
- The dates and periods specified by ERC are not fixed dates. Fixed dates must be specifically marked as such with a respective addition. The periods for delivery shall start upon payment of the advance payments agreed, receipt of all order documents and proper clarification of all details of the order, as well as the submission of any required certificates from public authorities. In the event of subsequent changes to the contract, the delivery date will be postponed accordingly.
- When the delivery is due, the customer may request in writing that ERC deliver the goods within an adequate period of time. Upon the expiration of this period for delivery, ERC is in default of performance unless ERC is not responsible for the non-performance.
- ERC is entitled to make partial deliveries and may invoice them separately.
- The dimensions and weights that are relevant for calculating the price shall be determined in the shipping departments of ERC's plants. Where the customer requests that goods be weighed by railways authorities at the station of departure, this will be done at its expense.
- ERC’s duty to perform is suspended in cases of force majeure (in particular operational or traffic disruptions, shipping disruptions, business interruptions due to technical reasons, war, strike, lockout, an insufficient supply of operating materials, measures taken by public authorities or comparable events), where ERC is not responsible for them, and in cases where ERC does not receive correct shipments of the corresponding goods or supplies or does not receive shipments in due time and is not responsible for this. ERC will notify the customer of the non-availability of the service without undue delay. In these cases ERC is entitled to postpone the performance for the duration of these events, but only by a maximum of four months. In the event of a permanent default of performance or one that lasts for more than four months, ERC and the customer are entitled to rescind part of or the entire contract. Where (part of) the contract is rescinded by ERC, the customer is not obliged to provide the (prorated share of the) consideration, and (the prorated share of) any advance payment made by it will be returned to it without undue delay if it cannot commercially use the partial delivery/service provided; the customer is not entitled to any claims for damages on this basis.
- The customer is liable for damage to or the loss of packing made available to it or a third party designated by it from the day of shipping until it arrives back at the return address specified by ERC. The customer shall empty any packing made available to it without undue delay, but in any case within 48 hours, and send it back to the return address in clean condition without undue delay carriage paid and free of charge.
- In the event of a delay in the return of packing for which it is responsible, the customer shall pay the customary demurrage and rent for packing. ERC is entitled to have packing repaired at the customer's expense if the customer is responsible for the damage. This does not affect any further claims ERC may have.
- With respect to packing provided by the customer, in particular containers, tank wagons and road tankers, ERC is not obliged to inspect them for suitability or cleanliness.
8. Passing of the risk / default of acceptance
- All sales are EXW. The Incoterms specified in Section 5 apply.
- Goods are always shipped and transported at the customer's risk. The risk shall pass to the customer at the latest when the shipment has been handed to the ‘transport person’ (regardless of whether this person is associated with ERC or a person not related to ERC) or has left ERC’s plant for shipping. This also applies with respect to partial deliveries. The risk shall also pass if the customer is in default of acceptance.
- Where the customer is in default of taking delivery or acceptance, ERC is entitled to demand reimbursement for any related additional expenses incurred by it. This does not affect any claims for damages ERC may have due to the customer's culpable breach of (ancillary) duties.
- Section 8.3 shall apply accordingly if the delivery is not called during the contractually agreed period where the parties have agreed upon delivery on call, or if the customer fails to provide the required cooperation.
- During the customer's default of taking delivery or acceptance, ERC is only liable for contractual claims related to the contract object with respect to damage caused intentionally or by gross negligence.
- If ERC keeps storing the contract object beyond the delivery date at the customer's request, the risk of accidental loss and the accidental deterioration of the contract object shall pass to the customer as of the acceptance date originally agreed. During this storage period, ERC is only liable for damage caused intentionally or by gross negligence.
9. Retention of title
- ERC will retain the title to the delivered products until all claims arising from the business relationship with the customer have been settled in full.
- Any processing or treatment of the goods subject to retention of title by the customer will always be performed on behalf of ERC, without creating any obligations for it. Ownership of the new items in their respective state of treatment or processing vests in ERC. If ERC's goods subject to retention of title are processed, treated, mixed or combined with other products that are not owned by ERC, ERC will acquire a co-ownership interest in the new item based on the share of the invoice price of the goods subject to retention of title compared to the invoice price of the other products.
- The customer may sell the goods subject to retention of title in which ERC holds a sole or co-ownership interest in the ordinary course of business; the customer it is not entitled to pledge or transfer goods or to assign claims as collateral. The customer hereby assigns to ERC in advance all of the claims to which it is entitled from the resale of the goods subject to retention of title or the products resulting from the processing, treatment, mixing or combination. This also applies if the products are sold together with other products that are not owned by ERC at a combined price. If, pursuant to a legal regulation, a third party has acquired ownership or co-ownership interests in the products as a consequence of the processing, treatment, mixing or combination, the customer hereby also assigns to ERC in advance any claims the customer may have against that third party. Assignments for purposes of this paragraph are made only up to the amount of the invoice price of the goods subject to retention of title. The Customer may collect the assigned claims until such permission is revoked; the permission may be revoked at any time. ERC hereby accepts the customer’s assignments provided for in this clause.
- If the customer's cooperation is required to make the retention of title effective, for example with regard to registrations that are required in accordance with the law of the country in which the customer is located, the customer shall perform such acts.
- If the customer is in default of payment, ERC may prohibit it from disposing of the goods subject to retention of title either completely or, at its discretion, in part, e.g. only with regard to selling or further processing, etc.
- If the customer meets the objective requirements of the duty to file for insolvency, it shall refrain from disposing of the goods subject to retention of title in any way, without being specifically requested to do so. The customer shall report the inventory of goods subject to retention of title to ERC without undue delay. In this event ERC is also entitled to rescind the contract and demand that the goods subject to retention of title be returned. If the goods subject to retention of title have been processed, treated, mixed or combined with other products, ERC is entitled to demand that they be surrendered to a trustee; the customer has a duty to disclose all co-owners of the goods subject to retention of title, including their names or company names, addresses, and co-ownership shares. The same, by analogy, applies to the claims that have been assigned to ERC in accordance with the previous paragraphs; in addition, the customer shall send ERC the names and addresses of all debtors and a copy of the documents evidencing the claims against them without being specifically requested to do so.
- ERC undertakes to release the existing collateral to the extent that its value exceeds the total of ERC's claims by more than 10% at the customer's request.
10. Duty of inspection and give notice of defects
- The customer shall carefully inspect the goods delivered without undue delay following their arrival at the destination, in particular with respect to their quality and quantity, even if models or samples were sent in advance. The customer must give notice of defects to ERC without undue delay, but in any case within 10 calendar days of the delivery. The customer must notify ERC of hidden defects without undue delay, but in any case within seven calendar days of discovering the defect, in writing. Where this duty to provide a notice of defect is breached, the assertion of claims for defects shall be excluded in this respect.
- At ERC's request, the customer shall provide samples of the material complained of to ERC without undue delay. Where ERC engages in negotiations about complaints, it does not waive the objection that the notice of defects was not given in due time and/or was insufficient.
- The customer must notify the shipping company of any transport damage without undue delay; in this respect, the duties to give notice of the German Freight Forwarders' Standard Terms and Conditions (Allgemeine Deutsche Speditionsbedingungen) apply.
11. Defects of quality
- If there is a defect for which a notice of defect has been given in due time in accordance with Section 10.1, ERC is entitled to choose its means of subsequent performance and may either remedy the defect or deliver a contract object that is free of defects within an adequate period of time. If the subsequent performance fails, the customer is entitled to, at its choice, demand a reduction of the fees (price reduction) or cancellation of the contract (rescission). The customer is not entitled to rescind the contract if the defects are only negligible. This does not affect ERC's right to refuse subsequent performance where the statutory conditions are met.
- In the event of a defect, ERC shall bear, or reimburse the customer for, the expenses required for the inspection and subsequent performance, in particular transport-, infrastructure, work and material costs, as well as removal and installation costs, as provided for by the relevant statutory regulation. Otherwise, ERC may demand that the customer reimburse it for the costs (in particular inspection and transport costs) incurred with respect to the unjustified demand to remedy a defect unless the fact that the contract object was not defective was not apparent to the customer.
- Further, ERC will not cover any increase in expenses that are due to the fact that the contract object is transported to a place other than the place agreed in the contract or the customer's main office. This also applies where ERC delivers the contract object to a third party directly at the customer's request.
- ERC is only liable for any damage claims asserted by the customer due to or related to defects of the contract object as specified in Section 12.
- All of the customer's claims for defects shall become time barred within one year, calculated as of the statutory commencement of the limitation period. The shortened limitation period does not apply to claims for damages of any kind, including those that are due to a breach of the duty of subsequent performance by ERC. ERC is not responsible for expenses resulting from any agreements between the customer and its own customers which exceed the statutory claims for defects.
- Where it turns out afterwards that there is no defect of quality or, respectively, that the work is not deficient, the customer has a duty to pay ERC for the services provided with respect to the subsequent performance in accordance with ERC's rates in effect at that time, unless the customer is not responsible for the false notice of defects.
- ERC is only liable for damage caused intentionally or by gross negligence. In the event of a breach of material contractual duties, ERC shall also be liable for ordinary negligence. “Material contractual duties” are duties that must be complied with in order to make the proper performance of the contract possible in the first place and on the observance of which the customer may regularly rely.
- Unless the damage was caused intentionally, ERC's liability is limited to the reasonably foreseeable damage typically incurred with this type of contract.
- The foregoing limitations of liability do not apply to injuries to the life, body or health of a person or in cases of liability pursuant to the German Product Liability Act.
- Claims for the compensation of expenses pursuant to Section 284 BGB are excluded as far as the claim for compensation of damage instead of performance is excluded pursuant to the foregoing provisions.
- The foregoing limitations of liability shall also apply for the benefit of the employees, management bodies and other vicarious agents acting for ERC in the performance of its obligations.
- The customer has a duty to notify ERC without undue delay in writing of any damage or loss for which ERC is liable.
- The provisions of this Clause 12 do not change the statutory burden of proof.
13. Intellectual property
- ERC is and remains the owner of all intellectual property relating to the goods sold and all software programmes (including scripts), software components, offers, cost estimates, drawings, illustrations, brochures, catalogues, models and/or other documents provided to the customer by ERC. Where the goods sold by ERC include software programmes (including scripts) or software components, or where software programmes (including scripts) or software components are sold together with goods, ERC grants the customer a non-exclusive right, without any limitation as to time or place, to use these software programmes (including scripts) or software components with the goods sold. The customer does not have any right to adapt or further develop these software programmes or software components (including scripts) beyond what is provided for in Sections 69d or 69e of the German Copyright Act (UrhG).
14. Place of performance / place of jurisdiction / applicable law
- The place of performance for deliveries and for the satisfaction of warranty claims is the registered office of ERC.
- If the Customer is domiciled in the EU or in the European Economic Area, then the following applies: If the customer is a businessman, a legal entity under public law or a special fund under public law, or does not have a general place of jurisdiction in Germany, exclusive venue shall lie in the courts with jurisdiction over ERC's registered office. Notwithstanding the foregoing, ERC may also bring a complaint at the customer's general place of jurisdiction.
On the other hand, if the customer is domiciled outside of the EU and the European Economic Area, the arbitral tribunal of the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit, DIS) shall have exclusive jurisdiction over any and all disputes arising under or in connection with contracts executed based on these General Terms and Conditions. The decisions of this arbitral tribunal shall be final and absolute and shall be without recourse to the ordinary courts. The defendant is entitled to bring a counter-claim before the court of arbitration. The place of arbitration is Hamburg; the language of the proceedings is German. The proceedings, and in particular the taking of evidence, will be conducted in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) and the rules of Book 10 of the German Code of Civil Procedure (Zivilprozessordnung). Procedural principles of common law, including, without limitation, regarding the production of documents, do not apply (neither directly nor by analogy). If, in connection with the arbitration proceedings, one party must pay the other party’s legal costs, then such costs are limited to the costs that may be charged according to the German Lawyers’ Compensation Act (Rechtsanwaltsvergütungsgesetz, RVG).
- The laws of the Federal Republic of Germany apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
- The customer may only transfer its rights and obligations under the contract with ERC’s written consent.
- ERC is entitled to use or utilise data from the trade of goods or payment transactions with the customer in compliance with data protection regulations.
- All agreements must be in writing unless the law provides for stricter form requirements. Changes and supplements to these General Terms and Conditions, including this written form clause, are also only effective if they are in writing. The same applies to side and additional agreements.
- If one or more provisions in these General Terms and Conditions are or become invalid or impracticable, this shall not affect the validity of the remaining provisions.
Version: 01. February 2020