Mitsubishi Chemical Europe GmbH - General Terms and Conditions
General Conditions of Sales and Deliveries
1. Extent of Validity
1.1.All deliveries and performances shall be exclusively made according to the following General Conditions of Sales and Deliveries.
1.2.Opposing or designating conditions, in particular purchase conditions of the customer, shall not apply, even without an express objection or in case orders are accepted without reservation. Opposing or deviating conditions become part of the contract only, if they are agreed with us explicitly and in written form. The waiver of this requirement of written form must also be made in writing. Telefax and email fulfill the written form requirement.
1.3.Any invalidity of individual clauses will not affect the validity of the remaining provisions. In case that a separate supply agreement is made, all such conditions shall remain valid that are not expressly set aside by special written agreement.
2. Offer and Order Confirmation
2.1. All offers are not binding.
2.2. The orders and their modifications or supplements as well as side agreements become bind-ing only and to the extent of the content of our written order confirmation.
2.3. The customer is responsible for the correctness and timely procurement of the documents he has to provide.
3. Prices and Payment Terms
3.1.Quotations of prices are not binding. Deliveries shall be invoiced at the price in force on the date of dispatch plus VAT at the statutory rate.
3.2.Price calculation is made on the basis of the quantities that were determined by us, or our pre-supplier, or at the supplier’s plant.
3.3.The purchase price is immediately due upon the invoice date net without deduction, unless otherwise agreed in writing. A cash discount deduction is always excluded if the customer defaults on payment obligations towards us.
3.4.Bills of exchange and checks are accepted only as conditional payment and after corre-sponding written agreement.
3.5 If the customer defaults on payment or his credit standing becomes doubtful, we are entitled to ask for immediate payment of all claims irrespectively of any acceptance of bills of ex-change or checks or granting of deferment of payment in another way. Further, we may can-cel the agreed terms of payment and make future deliveries dependent on prepayments or securities, and may cancel and withhold, either partially or entirely, further deliveries.
3.6.The customer shall pay interest of 9 percent points above the respective basic interest rate from the due date unless a higher damage is proved.
3.7. The customer is not entitled to withhold payments or offset them against any counter claims unless the counter claim is undisputed or legally enforceable.
4. Delivery and Delivery times
4.1.Time of delivery is not binding.
4.2.Even time of delivery assured and confirmed as binding will be respectively extended in case of delayed deliveries as the result of force majeure as for instance through wars, natural dis-asters, strikes, lockouts, operating troubles, shortage of manpower and raw material, trans-portation hold-ups as well as governmental directives that prevent or delay the production or transportation. This also applies when goods from our suppliers are late in arriving. If the de-livery is permanently made impossible by foresaid events we are entitled to withdraw from the contract without any liability for damages.
4.3.The fulfilment of our delivery obligation is subject to the timely and properly fulfilment of the obligations of the customer. Partial deliveries are admitted and can be charged separately.
4.4.In case of multiple delivery contracts we may fix a reasonable deadline for the request or ac-ceptance for the partial delivery and after its expiration we may terminate the contract and claim damages for non-performance in respect of the remaining quantity ordered.
4.5.If by our fault we do not keep a delivery time that was assured and confirmed in writing, the customer shall be entitled to set a reasonable period of grace after the expiration of the deliv-ery time and to terminate the contract after the expiration of the period of grace. Claims for damages caused by undue delay shall be excluded. Insofar as products are delivered from overseas “reasonable” shall be a period of grace of at least 12 weeks.
4.6.We are not liable for inability or delays in fulfilling delivery obligations, if and to the extent that these are caused by circumstances in the responsibility of the customer, in particular due to his fulfillment of public legal obligations under the valid version of Directive (EG) No. 1907/2006 (REACH Regulation)
4.7.Unless otherwise agreed in written form (in particular according to Incoterms in its respective valid version) the risk of loss and damage shall be transferred at latest when the goods are handed over to the forwarding agent, carrier or other person specified for the handover.
4.8.If the customer delays the acceptance of the delivery or refuses the acceptance of delivery for no apparent reason, we will charge the costs and additional expenses incurred. We re-serve the right to assertion of additional damages.
5. Retention of Title
5.1.The title to all goods delivered [conditional goods] remains with us upon full payment of all debts including future debts, arising from the business relationship with the customer. This also applies if payments are made against specially designated debts. If an invoice is still out-standing the retained title shall serve as a security for the balance due to us.
5.2.Processing or conversion of the conditional goods is carried out on our behalf without any obligation for us. We are considered the manufacturer in the meaning of section 950 of the German Civil Code, and we acquire ownership of the intermediate and end products, exclud-ing the customer as owner, in proportion to the invoice value of our conditional goods to the invoice values of the third-party goods. The same applies to combination or mixing of condi-tional goods with third-party goods in the sense of sections 947, 948 German Civil Code.
5.3.The customer holds the conditional goods in custody for us and free of charge and under-takes to insure it against the normal risks, such as but not limited to fire, water, theft etc. The customer may sell, use for manufacture, mix or combine the conditional goods only in the course of his ordinary business and only as long as he is not in default of payment. He is not entitled to otherwise dispose of the conditional goods, especially not to pledging and assign-ment by bill of sales as a security. The power of disposition shall end if the customer stops payments, or if there is a risk of insolvency, and further at any time when we revoke this right.
5.4. In the event of resale, the customer hereby assigns to us any claims together with all subsidi-ary rights arising from the resale of the conditional goods to third parties until full settlement of all claims arising from the business relationship with us. In the normal course of business, the customer is entitled to collect claims arising from the further use of conditional goods. If facts come to our knowledge which indicate a significant deterioration in the customer’s financial situation, then, upon request from us, the customer must inform his customers of the assign-ment, refrain from disposing of the debts in any way, give us all the necessary information about his inventory of goods which are our property and the claims assigned to us, and shall provide us with the necessary documents to enforce the assigned claims. In case of levies of execution or seizure attachments by third parties the customer must inform us immediately. The customer shall bear costs caused by our intervention.
5.5.We shall release the securities at the request of the customer, as far as their value exceeds the claim to be secured by more than 10 %.
5.6.As far as the respective national law, where the goods are in custody of the customer, re-quires further steps for the validity of the retention of title, for example, the registration with a registry, the customer has to perform them on his costs and has to deliver prove about this to us.
6.1.The internal and external properties of the goods owed are determined according to the agreed specifications, in case these are lacking, then according to our product descriptions and specifications. References to norms or similar regulations, information in safety data sheets, information on the applicability of the goods and statements in advertisements are neither warranties nor guarantees. The same applies to conformity declarations. In particular, pertinent identified uses according to the REACH Regulation [EG.] No. 1907/2006 represent neither an agreement concerning a corresponding contractual property nor a contractually stipulated utilization.
6.2.Immediately after receipt customer shall examine the goods for defects in quality or errors in quantity and shall notify us in writing pointing out the order data, invoice- and lot number. Oth-er defects must be notified to us in written from and immediately when they become visible. If we are not notified in time about the defects, the goods delivered are treated as approved by the customer. In any case, we must have the opportunity to verify the complaint.
6.3.If the notice of defects is made in time and is justified we shall undertake at our option to recti-fy or replace the goods.
6.4.Any advice in the mode of application is not binding on us and shall not release the customer from his duty to check whether the goods are suitable for the procedures and technologies intended by him or his customers. We do not assume any liability; all and any claims for dam-age against us related to our advice about the mode of application shall be excluded.
6.5.Further claims are excluded according to the provisions of section 7. This applies in particular to claims for damages which are consequential to defects and not on the goods themselves.
7. General Liability Limitation and Time Limitation
7.1.Regarding the infringement of contractual and non-contractual obligations, in particular re-garding impossibility, delay, culpa in contrahendo and tortuous acts, we are only liable - also for our executive managers and other agents - only in cases of deliberate intent and gross negligence, limited to the contract-inherent damage foreseeable when the contract was con-cluded. Otherwise, we exclude our liability for damages consequent to defects.
7.2.These restrictions are not applicable in case of culpable violation of substantial contractual obligations if the achievement of the objective of the contract is at risk, in cases of compulso-ry liability according to the Product Liability Act, in case of injury to life, person and health, and also if we have fraudulently concealed defects of the goods or guaranteed the absence of defects. The regulations on the burden of proof remain unaffected here.
7.3.Unless otherwise agreed, contractual claims that the customer has against us, because of and in connection to the delivery of goods or our other services, expire one year after delivery of the goods. This does not affect our liability arising from intentional and grossly negligent breaches of obligation, culpably effected damages to life, body and health.
If the customer notifies us of a use according to Article 37.2 of the Directive [EG] No. 1907/2006 of the European Parliament and the Council on registration, evaluation, authoriza-tion and restriction of chemical substances [REACH Regulation] which requires an updating of the registration or substance safety data report, or another obligation under the REACH Regulation, the customer bears all verifiable expenditure. We are not liable for any delivery delays resulting from the notification of this use and the fulfilment of the corresponding obliga-tions according to the REACH Directive. In case, for reasons of health or environmental pro-tection, it is not possible to include this use as an identified use, and should the customer in-tend, contrary to our advice, to use the goods in a manner we discourage, we can withdraw from the contract. The customer cannot deduce any rights against us from the above-mentioned regulations.
9. Jurisdiction and Governing Law, Place of fulfillment
9.1.Place of fulfillment for payment and deliveries is Düsseldorf. Place of jurisdiction, at our dis-cretion, is Düsseldorf or the seat of the customer.
9.2.The contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany with the exclusion of the rules of conflict of laws of the German Private International Law. The application of the UN-Convention on International Sales of Goods of April 11, 1980 is excluded.
9.3.In case of doubt the German version of the agreement and of these General Conditions of Sales and Deliveries shall have priority over versions in other languages.