I. Scope of application
All deliveries and any related services are exclusively carried out based on the terms of sale and delivery at hand. Any references to a Buyer's terms and conditions are hereby rejected. The terms of sale and delivery at hand shall also apply to all future transactions. Deviations from the terms of sale and delivery at hand require the express written acknowledgement of CENARIS GmbH (hereinafter referred to as 'CENARIS').
II. Contract conclusion
Offers made by CENARIS shall not be binding, but to be understood as an invitation to the Buyer to submit a contract offer to CENARIS. Contracts shall be concluded by Buyers placing orders (offers) and their respective acceptance by CENARIS. If an acceptance should deviate from the respective order, it shall be considered as a new, non-binding offer made by CENARIS.
III. Prices and Settlement
CENARIS shall invoice the prices valid at the time of delivery plus VAT.
In case CENARIS generally changes its prices for the to be delivered product or the conditions of payment in the period between the conclusion of the contract and the delivery, CENARIS shall be entitled to apply the prices or terms of payment valid on the day of delivery. In the case of a price increase, the Buyer shall be entitled to withdraw from the contract within 14 days after notification of such price increase, unless the price increase is based exclusively on an increase in the freight tariffs. The right of withdrawal shall not apply for contracts regarding the supply on a continuing basis (continuous obligations).
IV. Payments
Any invoice amount shall be due and payable on the due date without deduction. Payments shall only be deemed to be remitted in good time, if CENARIS is able to dispose of the money credited to the account specified by CENARIS at the due date. Non-payment at maturity shall constitute a material breach of contractual obligations. CENARIS shall be entitled to charge customary banking interest, if the time allowed for payment is exceeded.
Payment by means of bills of exchange shall not be permitted unless expressly agreed otherwise.
The non-payment of due invoices or other circumstances indicating a significant deterioration in the financial circumstances of the Buyer after the conclusion of a contract shall entitle CENARIS to make all CENARIS receivables payable immediately provided, they are based on the same legal relationship.
In cases, where a Buyer is not prepared to pay in advance or is not prepared to provide suitable collateral for the service incumbent on him in the aforementioned cases despite a clear demand, CENARIS shall be entitled to withdraw from the contract if and insofar as CENARIS has not yet made any deliveries nor rendered any services.
V. Deliveries
Deliveries shall be made in accordance with the commercial clause specified in the individual contracts, for the interpretation of which the INCOTERMS shall be decisive in the version valid at the time of conclusion of the contract. Unless expressly agreed, deliveries shall be made from the warehouse in Bremen, Germany (EXW).
VI. Collateral
In case of justified doubts as to the Buyer's solvency, in particular in cases of default of payment, CENARIS shall be entitled to revoke granted payment terms and to make further deliveries dependent on the granting of other collateral. Any further entitlements of CENARIS shall remain unaffected.
VII. Shipping, Transfer of risk
The Buyer shall be obliged to immediately accept the goods reported as ready for shipment. Otherwise, CENARIS shall be entitled to ship such goods at its own discretion at the expense of the Buyer or to store such goods - even in the open air - if necessary. One week after such goods have been stored, they shall be deemed as being delivered and hence can be invoiced. In such cases, CENARIS shall not be liable for damage to the goods.
In the case of collection by the Buyer, the risk of accidental loss, loss or damage of the goods shall be transferred upon the notification of the readiness for collection. Otherwise, the risk shall be transferred at the time the goods CENARIS has turned the goods over to the haulage contractor. In the absence of any special instructions, the choice of means of transport and the route of transport shall be made at the discretion of CENARIS. Additional costs caused by special requests of the Buyer shall be borne by the Buyer.
If a delivery takes place in loaned containers, such containers shall be returned to CENARIS completely empty and free of charge within 30 days of the receipt of the consignment. The cost of loss and damage to loaned packaging shall be borne by the Buyer, if such loss or damage is attributable to the Buyer. Loaned packaging may not be used for other purposes nor for accommodating other products. Loaned packaging is solely intended for the transport of the delivered goods. Labelling and lettering may not be removed.
Disposable packaging shall not be returned by CENARIS. Within the scope of the Packaging Ordinance, CENARIS shall provide the Buyer with the details of a third party who can recycle the packaging in accordance with the Packaging Ordinance.
VIII. Force majeure and other obstacles
All events and circumstances beyond the control of CENARIS, such as natural events, war, labour disputes, shortages of raw materials and energy, traffic and operational disturbances, fire and explosion damage, orders from higher authorities, shall release CENARIS from its contractual obligations for the duration of such disturbance and a subsequent reasonable start-up time. In such cases, CENARIS shall not be obliged to procure the goods from third parties. Sentences 1 and 2 shall also apply insofar as such events and circumstances render the execution of the business in question to become sustainably uneconomic for CENARIS or insofar as they apply to the subcontractors of CENARIS. If such events last longer than 3 months, both the Buyer and CENARIS shall be entitled, by precluding claims for damages, to withdraw from the contract with regard to the delivery quantity affected by the disruption. CENARIS shall notify the Buyer immediately about such events or circumstances. In the event of withdrawal, CENARIS shall immediately reimburse any consideration already received.
IX. Technical advisory
Where applicable, CENARIS shall provide advisory and consulting services to the best of its knowledge. All statements and information regarding the suitability and application of the delivered goods shall not be binding and shall not exempt the Buyer from performing own tests and trials.
X. Product condition, samples and specimens, warranties
As a matter of principle, only the condition expressly agreed by contract or described in the product descriptions, specifications and markings of CENARIS shall be classified as product condition. Public statements, recommendations or advertising statements of CENARIS and relevant identified uses according to the European Chemicals REACH Ordinance shall neither represent product condition nor a use presupposed by the contract.
Properties of samples and specimens shall only be binding insofar as they have been expressly agreed as the condition of the goods.
Details of condition and durability as well as other information shall only represent guarantees, if they have been expressly agreed and designated as such.
XI. Reservation of title
CENARIS shall retain the ownership of the delivery items until full payment of the purchase price has been effected.
The supplied goods shall remain the property of CENARIS until all claims arising from the current business relationship with the Buyer have been fulfilled. The retention of title shall also remain valid if individual claims of CENARIS have been included in one collective invoice, the account has been balanced and the statement of account has been accepted.
CENARIS shall be entitled to reclaim the goods from the Buyer on the basis of the retention of title, even if CENARIS has not yet withdrawn from the contract.
Any processing or mixing performed by the Buyer for CENARIS shall be carried out without any liability for CENARIS resulting therefrom.
In the event of the Buyer processing the products supplied by CENARIS, CENARIS shall become the manufacturer and acquire direct ownership of the new goods.
In the event of processing, combining or mixing with other goods owned by third parties, the Buyer hereby assigns the co-ownership of the new object in proportion of the value of the goods under reservation of title to the other processed goods to CENARIS, with the proviso that the Buyer shall keep and store such new object, whether jointly owned or co-owned by CENARIS, for CENARIS free of charge.
The Buyer shall be entitled to dispose of the goods subject to retention of title in the ordinary course of business and to collect the receivables assigned to CENARIS. These rights shall expire as soon as the Buyer fails to meet his obligations arising from the business relationship with CENARIS in time, stops the payments and/or faces a financial collapse. If and insofar as the above conditions are fulfilled, CENARIS shall be entitled, under exclusion of the right of retention, to demand the immediate provisional surrender of the entire goods subject to retention of title at the expense of the Buyer without setting a period of grace or exercising the right of withdrawal.
The Buyer hereby assigns the receivables from the sale of goods in which CENARIS owns property rights, in advance and to the extent of the ownership interest of CENARIS in the goods sold for securing purposes. If and insofar as CENARIS has acquired co-ownership in the event of processing, combining or mixing, such assignment shall take place in the ratio of the value of the goods delivered under retention of title to the value of the goods subject to retention of title by third parties. The Buyer shall assign accepted balance receivables arising from open account agreements to CENARIS already at the time of the conclusion of a contract in the amount of the then still outstanding claims of CENARIS.
At the request of CENARIS, the Buyer shall provide all necessary information on the inventory of the goods in the property of CENARIS and on the claims assigned to CENARIS, and to notify its Buyers of such assignments.
The Buyer shall be obliged to carefully store the goods under reservation of title at his own expense and to insure them against loss and damage. The Buyer already herewith assigns his claims under the respective insurance contracts to CENARIS.
If and insofar as the value of the collateral exceeds the secured claims by more than 20%, CENARIS shall be obliged to release collateral to the respective extent to the Buyer at its discretion.
Insofar as the effectiveness of the retention of title should require the cooperation of the Buyer (e.g., registration), the Buyer shall undertake the actions necessary to establish and maintain the rights for CENARIS.
If and insofar as the retention of title according to the law of the country in which the delivered goods are located, should not be effective, the Buyer shall, at the request of CENARIS, provide equivalent collateral. If the Buyer does not comply with such request, CENARIS shall be entitled to demand the immediate payment of all outstanding invoices, irrespective of any agreed payment terms.
XII. Entitlements of the Buyer as regards deficiencies
The Buyer shall notify CENARIS immediately following receipt of the goods of any deficiencies thereof, which can be detected by a duly conducted inspection; other deficiencies shall be reported within four (4) weeks of detection. The notification shall be made in writing and shall precisely specify the nature and extent of the deficiency.
If the goods are deficient, and the Buyer duly notified CENARIS of such deficiency in accordance with cipher 1, the Buyer shall be entitled to the statutory rights with the following stipulations:
a) CENARIS shall initially reserve the right, at its discretion, either to remedy the deficiency or to supply the Buyer with a deficiency-free product (subsequent performance).
b) CENARIS shall be entitled to make two subsequent performance attempts. Should the subsequent performance fail or be unreasonable for the Buyer, the Buyer may either withdraw from the contract or reduce the purchase price.
c) Section XIII shall apply for damage claims and reimbursement of futile expenses incurred due to a deficiency.
Deficiency claims of the Buyer shall become statute-barred after the expiry of one year from the date the goods were delivered. Instead of this one-year period, the statutory limitation periods shall apply in the following cases:
a) in the case of liability due to intent,
b) in the case of fraudulent concealment of a deficiency,
c) for claims against CENARIS relating to the deficiency of goods, when deployed for building construction in accordance with its normal use and thereby caused its defectiveness,
d) for damage claims resulting from injury to life, limb or health, which are based on a negligent breach of duty by CENARIS or a wilful or negligent breach of duty by a legal representative or vicarious agent of CENARIS,
e) in the case of claims for other damages based on a grossly negligent breach of duty by CENARIS or a wilful or grossly negligent breach of duty by a legal representative or vicarious agent of CENARIS, and
f) in the case of recourse of the Buyer due to the regulations governing consumer good purchases.
XIII. Liability
In principle according to the statutory provisions, CENARIS shall be liable in case of claims for damages - also in cases of a non-contractual nature. In the case of simple negligent breach of significant contractual obligations, however, the liability of CENARIS shall be limited to the compensation of the typical, foreseeable damages. In the case of simple negligent breach of non-significant contractual obligations, a liability of CENARIS shall be precluded. The aforementioned limitations of liability shall not apply for culpable injury to life, limb or health.
CENARIS shall not be held liable in cases where fulfilling the obligation to deliver is deemed impossible or delayed if the impossibility or delay is initiated by the Buyer based on the orderly compliance of regulatory and legal obligations in connection with the European Chemicals REACH Ordinance.
XIV. Place of fulfilment, Place of jurisdiction and Governing law
Place of fulfilment for the delivery shall be the respective place of shipment of CENARIS, the place of payment shall be Bremen, Germany.
Place of jurisdiction is at the sole discretion of CENARIS and shall either be Bremen, Germany or the place of the Buyers general jurisdiction.
All legal relationships between CENARIS and the Buyer shall be exclusively governed by the laws of Germany. The applicability of the United Nations Convention of April 11th, 1980 on Contracts for the International Sale of Goods (CISG) shall be precluded.