General Terms and Conditions (GTC)

 

1. Area of applicability, conclusion of contract

1.1 These general terms and conditions of sale and delivery apply exclusively to all deliveries and services in business transactions with entrepreneurs, legal persons under public law or special assets under public law, even if we do not expressly state this when business transactions are concluded in the future. We hereby object to conflicting and differing general terms and conditions of the customer. We do not accept these, not even if they are attached to invitations to tender, offers, orders, declarations of acceptance and the like and these are not objected to, unless we have expressly confirmed in writing that they apply. The unconditional acceptance of our goods or services is considered in any event to be the customer’s consent to our general terms and conditions of sale and delivery. The above also applies to other terms and conditions that are not included in our general terms and conditions. These general terms and conditions apply to all future contracts between us and the customer – to the exclusion of conflicting general terms and conditions of the customer.

1.2 Our offers are without obligation and non-binding, in particular with regard to prices, quantities, delivery times and availability. A contract is not concluded until the order has been placed by the customer and accepted by us. We have the right to accept the order within two calendar weeks of receipt of the order by sending an order confirmation or by delivery of the goods to the customer. We reserve the right to inform the customer within two calendar weeks of receipt of the order that we refuse to accept the order.

2. Prices, payment terms

2.1 Deliveries will be made in accordance with the trade clause specified in the order confirmations. For the interpretation of the trade clause, the INCOTERMS in the version valid at the time of conclusion of the contract apply. VAT is not included in our prices and will be charged additionally in accordance with the applicable statutory regulations.

2.2 Unless otherwise is stated in the order confirmation, the fee is payable and due without deductions fourteen calendar days from the invoice date. Non-payment of the purchase price when due constitutes a material breach of contractual obligations. If the customer does not pay as agreed, after the 3rd reminder we may charge from the due date interest for invoicing in euros at 9 percentage points above the base interest rate announced by the Deutsche Bundesbank at the time the default occurs. The right to claim further damages is reserved. 2.3 The customer does not have the right to withhold payments due to any counterclaims (including warranty claims) or to offset such counterclaims unless these are undisputed, accepted by us in writing or established in law.

2.4 If it becomes evident after conclusion of the contract that our claim to payment is at risk due to the customer’s inability to pay, we will have the right to make all outstanding claims due and to ask the customer to pay immediately on delivery or to provide security. Furthermore, we can make further deliveries dependent on the granting of other securities or advance payments. If the customer does not comply with such a request within a reasonable period of time, we may demand compensation and withdraw from the contract.

2.5 Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in labour, material, production and distribution costs for deliveries as well as significant currency fluctuations that occur 3 (three) months or later after conclusion of the contract. We will notify the customer of such price changes within a reasonable period of time and before delivery of the goods at least in text form.

3. Retention of title

3.1 The goods remain our property until all current and future claims arising from business relationships with the customer have been met in full. We will have the right to take back the goods if the customer is in breach of contract.

3.2 The customer has to store and label the goods that belong to us (reserved goods) separately. If third parties claim or assert a right to the reserved goods, the customer has to notify us of this immediately in writing.

3.3 Any processing, combining, or mixing of the reserved goods will be performed by the customer on our behalf, without incurring any obligations for us. If the customer combines, mixes, mixes or processes the reserved goods with other goods or transforms them with other goods, we will be entitled to co-ownership of the resulting new goods in the proportion of the invoice value of the reserved goods to the other goods. In this respect, the new goods will be considered to be reserved goods within the meaning of these retention of title conditions.

3.4 A sale of the reserved goods is only permitted in the normal course of business. Other disposals, in particular pledging and transfer of ownership of the reserved goods as security, are not permitted. All claims to which the customer is entitled with regard to the reserved goods from resale or other legal reasons are hereby assigned to us in full in advance; in the case of co-ownership, the assignment only covers the share of the claim corresponding to our co-ownership. We accept this assignment. The resale of the reserved goods is only permitted if this assignment is secured. The customer is only permitted to sell claims from the resale of the reserved goods (factoring) with our prior consent in writing.

3.5 The customer is authorised to collect the claims assigned to us in the normal course of business. This authorisation may be withdrawn at any time. Upon our request, the customer has to notify its debtors of the assignment. We may also make this notification at any time and reserve the right to collect the claims ourselves as soon as the customer defaults on payment.

3.6 If the customer has stopped making payments, it must send to us immediately a list of the remaining reserved goods, including those that have been processed, and a list of the claims against the third-party debtors. In the event of an application to open insolvency proceedings against the customer’s assets, we will have the right to withdraw from the contract and demand the immediate return of the reserved goods that have not yet been processed.

3.7 We will have the right to withdraw from the contract and demand return of the reserved goods if the customer is in breach of contract, in particular if the customer defaults on payment or is in breach of an obligation pursuant to this subparagraph 3.2 or 3.4. In these cases we will have the right to take possession of the reserved goods and to enter the customer’s premises for this purpose. The customer must provide us with all relevant information about the reserved goods and hand over any necessary documents.

3.8 We undertake to release the securities to which we are entitled upon request by the customer insofar as the realisable value of our securities exceeds the amount of all secured claims by more than 10 %; we will choose the securities to be released.

4. Transport damage

4.1 The customer has to report complaints about transport damage to the transport company immediately with a copy to us within the special periods provided for this purpose.

5. Packaging, loan and return of returnable containers, dangerous goods regulations

5.1 Unless otherwise is stated, we will not take back transport, sales and outer packaging. The customer has to ensure proper disposal of the packaging at its own cost. This does not apply to the returnable containers covered by the provisions below.

5.2 If agreed in the order confirmation, we will lend to the customer for the period agreed in the order confirmation IBCs and pallet cages (hereafter “returnable containers”), which may be used only for the purpose of transporting the delivered goods to the customer until they are emptied in the normal course of business. The returnable containers must be stored carefully by the customer and in particular must not be filled with products other than those supplied by Van Erp for safety reasons. They are not allowed to be filled by the customer. The returnable containers will remain our property. Within an agreed reasonable period of time, the customer has to either make the returnable containers available for collection in a completely empty and cleaned condition or to return them to us, whichever has been agreed in the order confirmation. If a larger quantity of the product is in the returnable container at the time of collection/return delivery, we will have the right to charge the customer for the associated additional costs. The costs associated with the collection or return delivery, in particular freight costs, will be borne by the customer if it was agreed in the order confirmation that the customer has to bear the costs for the delivery of the product. If the delivery costs were borne by us, we will also bear the costs for the collection or return delivery of the returnable containers. The customer has to notify us in good time and in writing of the return delivery or readiness for collection. 5.3 The customer has to observe and comply with the dangerous goods regulations applicable to the customer.

6. Activities to be performed by the customer

6.1 The customer will ensure that all necessary activities relating to the provision of material and cooperation are performed on time, free of charge and to the extent necessary to enable us to provide our services.

6.2 In particular, the customer undertakes to protect our employees from any dangers in the performance of their activities, in particular from dangers to life and limb. To ensure this, the customer undertakes: – to provide us in advance and in writing with all information about any dangers and exposures that may arise from the working environment in the customer’s operation; – to instruct our (field service) employees on site before they start their activities and – to establish and maintain safe conditions and working conditions in its company for our (field service) employees. We have at all times the right to refuse our services if there are dangers to the life, limb or health of our (field) employees.

6.3 Van Erp Chemische Produkte GmbH has been an active member of SEDEX since 2023 and has made a commitment to meet the ETI requirements. We also expect our suppliers and customers to comply with the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG) and meet the ETI requirements. If we find during the course of an audit or otherwise that our suppliers or customers are not meeting these requirements, we reserve the right to take appropriate measures. We also expect our customers and suppliers to do all they can to strive constantly for energy efficiency.

7. Delivery times, delivery disruptions, force majeure and delays

7.1 Stated delivery times are only binding for us if they have been described as binding by us and the customer in writing, otherwise all delivery times are non-binding.

7.2 In order for us to adhere to agreed delivery times, the customer has to provide us in good time with all the necessary documents, approvals and clearances to be provided by it and meet all of its other obligations. If these requirements are not met in good time, the delivery times will be extended accordingly. This will not apply if we are responsible for the delay. Even if a fixed delivery time or a fixed delivery date has been agreed, if we fall behind, we must be given a reasonable grace period of usually four calendar weeks. If this period passes without success, the customer must declare within a reasonable period of time whether it will withdraw from the contract for the quantity in default due to the delay in delivery, demand compensation instead of performance or insist on delivery.

7.3 Should events and circumstances beyond our control (“force majeure”) prevent us from meeting our contractual obligations and/or reduce the availability of the goods from the facility from which we obtain the goods, with the result that we are unable to meet our contractual obligations (taking into account other internal or external delivery obligations), we will be released from our contractual obligations for the duration of the disruption and to the extent of its effects and will not be obliged to procure the goods from third parties. If we are prevented from delivering on time by force majeure, the delivery time will be extended by the duration of the disruption in performance caused by these circumstances. Force majeure includes all unforeseeable events or events that – even if they were foreseeable – are beyond our control and whose effects on the performance of the contract we are unable to prevent through appropriate and reasonable efforts. Force majeure also includes all disruptions in performance that are based on the following circumstances:

– failure or partial failure of operating systems or other operational disruptions

– non-issuance, cancellation, restriction or addition of official approvals and requirements

– delay in the delivery of essential materials required to provide the goods or services

– failure by our own suppliers to supply correctly or on time

– difficulties occurring in the procurement of raw materials and operating materials as well as in the shipping or transport of the goods

– strike or lockout, unless we, our executive bodies or those vicarious agents to whom special management tasks have been assigned have caused the aforementioned circumstances intentionally or through gross negligence.

The party receiving the service will be informed in an appropriate manner of the occurrence of the disruption by the party whose provision of the service is affected by the force majeure event. This will also apply if the events and circumstances make it uneconomical for us on a permanent basis to carry out the relevant business or if these occur at our suppliers. If the disruption in performance in such cases lasts longer than six months, both parties will have the right to withdraw from the contract after a reasonable notice period has passed and to the exclusion of further claims.

7.4 For all claims for compensation by the customer due to delay or other breaches of duty in connection with the delivery of the goods, paragraph 13 (“Exclusion of liability, limitation of liability”) applies.

7.5 Partial deliveries and corresponding invoices are permitted, unless they are unreasonable for the customer.

8. Delivery, transfer of risk and shipping

8.1 The applicable INCOTERM is stated in the order confirmation. The INCOTERMS apply in the version current at the time the contract is concluded, unless otherwise is stated in the order confirmation.

8.2 We are not liable for any loss of weight during shipping. Shipping instructions must always be given with the order. Unless otherwise has been agreed, the choice of shipping method and route – with no guarantee of the fastest delivery – lies with us. Additional costs for urgent and express shipments made at the customer’s request will be at the customer’s expense. The deliveries include packaging, unless it is expressly stated that the packaging is provided on a loan basis.

9. Export controls

9.1 The customer agrees that it will observe and comply with all relevant export control regulations and embargo regulations (including all sanctions lists), in particular the relevant German and European export control regulations.

9.2 The customer has to provide us upon request with appropriate information about the end use of the goods to be delivered or services to be provided, in particular to issue so-called end-use certificates and send original copies of these in order to be able to check the end use and intended use and to provide evidence of this to the responsible export control authority.

9.3 If the necessary export or transfer permits or other permits or clearances required under foreign trade law are not granted by the responsible authorities or if there are other legal obstacles to the performance of the contract or the delivery by us as the exporter or shipper or by our suppliers due to regulations under foreign trade law and embargo law, we will have the right to withdraw from the contract to the exclusion of further rights of the customer and in particular to the exclusion of claims for compensation by the customer.

9.4 In order for us to adhere to agreed delivery times, it is necessary that export or transfer permits are cleared or issued by the responsible authorities. If we are prevented from delivering or performing on time due to the implementation of an application and approval procedure under foreign trade law, the delivery time will be extended by the duration of the delay caused by this official procedure, to the exclusion of further rights of the customer and in particular to the exclusion of claims for compensation by the customer.

9.5 The customer is liable for non-compliance and will indemnify us fully against and compensate us for all damages and costs upon first request.

10. Dimensions, weights and delivery quantities

10.1 The dimensions, weights and quantities specified in the shipping/accompanying documents are relevant for billing. Complaints regarding delivery dimensions, delivery weight and delivery quantity must be made in writing within three working days of receipt of the goods at the destination.

11. Condition of the goods, technical advice, use and processing of the goods, guarantees

11.1 With regard to the quality of the goods, only the quality described in our product descriptions, specifications and labels applies. Public statements, recommendations or advertising do not constitute information with regard to the quality of the goods. Relevant “identified uses” for the goods according to the European Chemicals Regulation (REACHVO) do not constitute an agreement on a corresponding contractual quality of the goods nor a use provided for in the contract.

11.2 We reserve the right to make minor modifications to the material and/or design of the goods to the extent that is customary in the trade, provided that this does not otherwise change the agreed quality. Minor deviations in the chemical composition of the goods compared to the agreed quality remain reserved insofar as these are due to the nature of the materials used and are customary in the trade.

11.3 The application technology advice that we give verbally, in writing and through tests is given to the best of our knowledge based on our experience and the information provided by our customer, but without us accepting any liability for the advice we give to the customer. The application-specific advice is given exclusively to support the customer in its procedures and processes, which the customer carries out under its sole responsibility. We do not accept any responsibility for a specific result in connection with our advisory services. In particular, we do not accept any liability for advice or suggestions in connection with the construction, modification and operation of the customer’s systems. Our application technology advice therefore does not release the customer from its responsibility to carry out its own tests and inspection of the goods delivered by us for their suitability for the intended processes and purposes. The application, use and processing of the goods are beyond our control and are therefore exclusively the responsibility of the customer.

11.4 We are not liable for any infringement of third-party property rights in connection with the application, use and processing of our goods.

11.5 Commitments, guarantees or any other assurances regarding the products, goods and services that go beyond the specifications of our goods require a prior, separate written agreement to be effective in individual cases or must be confirmed by us in writing. Any reference to DIN standards or comparable standards serves only to describe the goods and does not constitute any further promise or guarantee.

12. Customer claims in the event of defects, limitation period

12.1 The customer’s rights relating to defects in the goods require that the customer inspects the goods after handover and notifies us in writing of any defects immediately, within no more than two calendar weeks of handover, stating the invoice number; hidden defects must be reported to us in writing immediately upon their discovery.

12.2 We guarantee that our goods meet the quality described in our product descriptions, specifications and labels at the time of transfer of risk. We do not accept any responsibility for the suitability of the goods for a particular purpose or use, unless we have expressly agreed to this in advance in writing.

12.3 The customer’s rights in the event of defects will not apply if defects occur for reasons for which the customer is responsible (e.g. due to unsuitable or improper use, or use outside the contractually agreed or usual use, storage or failure to comply with handling instructions, incorrect handling by the customer, changes by the customer or third parties). The same applies to natural wear and tear or if the use-by date of the goods has passed.

12.4 In the event of any notice of defects, we have the right to inspect and test the goods which are the subject of the complaint. The customer will grant us the time and opportunity required to do this. We may also require the customer to return the goods which are the subject of the complaint to us at our expense.

12.5 If the goods are proven to have defects, we will eliminate the defects free of charge (rework) or deliver (new delivery) a replacement free of charge (subsequent performance) upon return of the goods which are the subject of the complaint, as we choose. The place of performance for the subsequent performance is the headquarters or branch of the customer to which the goods are delivered. The subsequent performance will not be free of charge if the costs necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, increase unreasonably because the object of the delivery has subsequently been moved to a location other than the customer’s headquarters or branch. If the movement complies with the intended use, the subsequent performance will remain free of charge for the customer insofar as this is reasonable.

12.6 The customer reserves the right, without prejudice to any claims for compensation, to withdraw from the contract or to reduce the purchase price, if the customer has given us a reasonable deadline for subsequent performance and this subsequent performance fails, if we have the right to refuse to provide subsequent performance pursuant to section 439 (3) of the German Civil Code (BGB) or if the subsequent performance is unreasonable for us. If there is only a minor deviation of the goods from the agreed quality, the customer can only demand a reduction in the purchase price.

12.6 If the customer chooses compensation after subsequent performance has failed, the goods will remain with the customer if this is reasonable for the customer. In these cases, the compensation will be limited to the difference between the purchase price and the value of the defective item, in deviation from paragraph 13.1 sentence 3 (“Exclusion of liability, limitation of liability”). Otherwise, the provisions of paragraph 13 (“Exclusion of liability, limitation of liability”) apply.

12.7 If, after a defect has been notified in accordance with the provisions of section 377 of the German Commercial Code (Handelsgesetzbuch, HGB) (Notification of defects), we have provided services to assess and look for a defect and it is established that there was no defect, the customer will have to bear the costs incurred as a result of this, insofar as it has acted culpably. The calculation of the corresponding costs will be based on our fees that are applicable at the time the service is provided.

12.8 The limitation period for claims for defects by the customer is one year from delivery of the goods; in the case of the delivery of an item that was used for a building in accordance with its normal use and caused its defect, the limitation period for claims for defects is two years from the start of the statutory limitation period. For claims for compensation by the customer for reasons other than defects in the goods and with regard to the customer’s rights in the case of defects that were fraudulently concealed or caused intentionally, the statutory limitation periods remain.

13. Exclusion of liability, limitation of liability

13.1 In the event of a slightly negligent breach of material obligations arising from the contractual relationship by us, our legal representatives and vicarious agents, our liability for all resulting damage will be limited to compensation for foreseeable, typically occurring damage. Material obligations arising from the contractual relationship are those obligations whose fulfilment enables the contract to be duly performed at all, the breach of which jeopardises the fulfilment of the purpose of the contract and which the contract partner may routinely trust are adhered to. Our maximum liability within the meaning of the first sentence of this subparagraph a) is the value of the defective delivery or service concerned.

13.2 Our liability for the slightly negligent breach of non-material obligations arising from the contractual relationship is excluded.

13.3 The aforementioned limitations of liability do not apply in cases of mandatory legal liability (in particular under the Product Liability Act (Produkthaftungsgesetz)), in cases where guarantees have been provided, in cases of culpable injury to life, limb or health or in cases of intent or gross negligence.

13.4 We will not be liable if the fulfilment of the delivery obligations is impossible or delayed, if the impossibility or delay is caused by the customer’s due compliance with obligations under public law in connection with the European Chemicals Regulation (REACHVO).

13.5 If the customer sells the goods, it will indemnify us in the internal relationship against third-party product liability claims, insofar as it is responsible for the error that triggers the liability.

14. Infringement of third-party rights

14.1 If deliveries are made according to plans, drawings, models, analytical specifications or other information provided by the customer and the rights of third parties, in particular intellectual property rights, are thereby infringed, the customer will indemnify us against and compensate us for these claims upon first request.

15. Confidentiality

15.1 The parties agree to maintain the confidentiality of the business and trade secrets received from the other party for the purposes of the order. What is understood by business secrets is all confidential data of one of the parties that relate to its condition and market behaviour and what is understood by trade secrets is all technical data of one of the parties (hereafter “confidential information”). The parties also agree that they will not disclose the confidential information to third parties without the prior written consent of the other party and not use it for their own purposes without authorisation. The parties’ affiliated companies within the meaning of sections 15 ff. of the Stock Corporation Act (Aktiengesetz, AktG) are not third parties in this sense. The parties will also impose this obligation of confidentiality on their employees and any third parties employed.

15.2 The above obligations under subparagraph 15.1 (“Confidentiality”) do not apply to confidential information for which the receiving party can prove that – it was already public at the time of its provision or subsequently became public without any action by the receiving party, or – it was already in the possession of the receiving party at the time of its provision or was subsequently made available to the receiving party by a third party, in a legally permissible manner and without restrictions with regard to confidentiality or use, or – is the result of the work of the receiving party’s own employees, without any confidential information of the disclosing party or parts thereof being used and the work not being carried out in connection with the purpose of the information, or – is required to be disclosed by it in court or administrative proceedings, pursuant to an administrative order or for other legal reasons, whereby the receiving party undertakes to inform the disclosing party in writing before disclosing it in these cases. Specific confidential information does not fall under the aforementioned exceptions simply because it is covered by general knowledge and experience, which as such falls under those exceptions. Likewise, a combination of individual pieces of information does not fall under the aforementioned exceptions simply because the individual pieces of information in this combination as such fall under these exceptions, but only if this combination itself also falls under these exceptions.

15.3 This obligation will continue for a period of two years after completion of the order.

16. Data protection

16.1 If we provide the customer with personal data of our employees (hereafter: “personal data”) in the performance of the contract or if the customer gains knowledge of this personal data in any other way, the following provisions apply: personal data that is disclosed in the aforementioned way and not processed on our behalf may be processed by the customer exclusively for the purpose of execution of the contract and may not – unless legally permissible – be processed in any other way, in particular it may not be disclosed to third parties and/or analysed for the customer’s own purposes and/or be used to create profiles. This will also apply if anonymised data is used. The customer will ensure that the personal data is only made accessible to those employees of the customer who are employed for the execution of the contract concerned and only to the extent necessary for the execution of this contract. The customer will structure its internal organisation in such a way that it meets the requirements of the applicable data protection law, in particular taking technical and organisational measures to adequately protect the personal data against misuse and loss. The customer does not acquire any rights to the personal data and is obliged to rectify, erase and/or restrict the processing of the personal data at any time under the legal requirements. Rights of retention with regard to personal data are excluded. In addition to its legal obligations, the customer will inform us immediately, at the latest within 24 hours, of any personal data breach, in particular in the event of loss. Upon termination of the contract concerned, the customer will erase the personal data, including all copies made, in accordance with the legal requirements.

17. Place of fulfilment, place of jurisdiction, applicable law

17.1 The place of fulfilment for the customer’s payment obligations is 85084 Reichertshofen, for our obligations the place of fulfilment is the place of delivery.

17.2 The place of jurisdiction for all disputes arising from or in connection with the contract between us and the customer is 85049 Ingolstadt. This also applies to lawsuits arising from bills of exchange and cheques. We also have the right to assert our claims at the customer’s general place of jurisdiction.

17.3 The law of the Federal Republic of Germany applies to all legal relationships between the customer and us to the exclusion of conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

18. Contract language

18.1 These general terms and conditions of sale and delivery exist in a German and an English version. For the legal relationships between the customer and us, the version of the general terms and conditions of sales and delivery in the respective contract language applies.

(Date 11/2023)