1. Validity for future business transactions – Validity of contrary general terms and conditions – Validity for companies only
1.1. Our sales and delivery terms and conditions apply exclusively. They shall also apply to all in future deliveries, even when no special reference is made thereto. We do not accept contrary terms and conditions or client terms and conditions which differ from our delivery terms and conditions unless we have expressly agreed to the validity thereof in writing. Our delivery terms and conditions shall also apply when we unconditionally make the delivery to the client, but are aware of conflicting terms and conditions or those which differ from our delivery terms and conditions.
1.2. Our conditions of sale shall only apply to companies (pursuant to Section 14 of the German Civil Code), legal persons governed by public law or a separate legal entity under public law.
2. Quotes, conclusion of contract
2.1. Our quotes are subject to change and are non-binding unless they have been explicitly declared binding or include a specific period of acceptance.
2.2. The ordering of goods by the client shall be deemed to be a binding contractual offer. Orders are only binding upon us if we confirm them in writing within two weeks, or if we fulfil them within two weeks through shipment of the ordered goods.
2.3. The legal relationship between the client and us shall be governed exclusively by the written contract, including these Terms of Sale and Delivery. Verbal agreements made by us before the conclusion of the contract are not legally binding and verbal understandings between the contracting parties are superseded by the written contract, unless it is expressly stated therein that such agreements will continue to apply.
2.4. Amendments and modifications to the agreements made, including these general Terms of Sale and Delivery, must be made in writing in order to be valid. With the exception of managing directors and holders of commercial powers of attorney, our employees are not authorised to make oral agreements which are contrary to the cited provisions.
2.5. The information we provide on the item to be supplied (e.g. weights, dimensions, quantities and functional values), as well as our descriptions of the item to be supplied, are only approximations, unless use for the purpose intended by the contract requires full conformity. These are not guaranteed physical characteristics, rather descriptions or characterisations of the product. Deviations that are customary in the trade and deviations that are the result of legal provisions are permissible provided that they do not impair usability for the contractually agreed purpose. Refer below to Article 10 of these terms and conditions.
3. Prices, price adjustments
3.1. Our prices are quoted "ex works" Karlsruhe, in accordance with INCOTERMS, plus packaging, tariffs where export shipments are concerned, statutory VAT, fees and other public duties.
3.2. We reserve the right to amend the listed prices upon which the contract is based accordingly if cost reductions or increases arise as a result of tariff agreements, or if the price of materials increases after the contract is concluded. These shall be verified to the client upon request. A price adjustment shall not be effected in cases where delivery is made as contractually stipulated within four months of conclusion of the contract.
4. Payment terms and conditions, payment arrears
4.1. To avoid accounting errors and the resulting erroneous issue of dunning notices, we rely on receiving the correct invoice number, invoice date and individual invoiced amounts with incoming payments. This data can be found on all of our invoices. If the payer is not the same as the invoice recipient, the name stated on the relevant invoice must also be given. If we receive payments without this information, we cannot guarantee that payments will be assigned correctly.
4.2. The invoiced amount becomes payable upon receipt of the goods. Unless otherwise specified in writing, it is payable within thirty days without any deduction. In the event that the date on which the invoice or an equivalent payment schedule was received is disputed, the client is considered to be in default 30 days after receipt of the goods at the latest, in accordance with Section 286(4) of the German Civil Code. The payment is considered settled on the date on which we receive it. Otherwise, the statutory regulations on defaults of payment apply.
4.3. For payment within eight days from date of invoice, a 2% discount shall be granted. The precondition for any discount shall be the settlement of all other client payables arising from the business relationship with us that are older than 30 days.
4.4. For new clients, we reserve the right to require that payment be made prior to delivery or by cash on delivery.
5. Off-setting, retention
The off-setting of counter-demands by the client or the retention of payment due to such demands shall only be permissible if such demands are indisputable, or if their validity has been legally established.
6. Shipping, packaging, transfer of risk
6.1. The shipping method and the packaging shall be subject to our due discretion.
6.2. The risk of accidental loss or accidental deterioration of the delivered goods is, at the latest, transferred to the client upon hand-over of the goods to the forwarding agent, the carrier, or any other third party charged with the task of performing shipment (applicable from commencement of loading). This also applies in the case of partial deliveries, and with respect to each partial delivery.
6.3. The shipment is only insured against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the client and at the client's expense.
7. Delivery time
7.1. The promised deadlines and dates are only binding upon us if we have confirmed them in writing. The delivery dates indicated on our website during the ordering process or in our catalogue do not constitute such confirmation. Compliance with our delivery obligation requires the timely and proper fulfilment of the client's obligations. If shipping has been agreed, delivery dates and deadlines refer to the time of transfer to the forwarder, carrier, or other third party assigned to transport the goods.
7.2. We cannot be held liable should a delivery prove impossible or in the case of delays in delivery due to force majeure or other events that were unforeseeable on conclusion of the contract (e.g. fire, explosion, strikes, lawful lockout, complications in procuring materials or energy, war, unrest, government rejection or renunciation of import and export licences, shortage of raw materials and/or other products and/or constituent parts), and for which we are not accountable. We reserve the right to withdraw from the contract if such occurrences substantially complicate delivery or make delivery impossible, and if the disruption is not merely of a temporary nature. If the disruption is of a temporary nature, delivery times shall be extended to take account of the period of disruption and a reasonable start-up period. We shall notify the client of the start and end of such circumstances as promptly as possible. If such a delay makes acceptance of delivery unreasonable for the client, the client shall be entitled to withdraw from the contract by issuing immediate written notice.
7.3. If we are in default of delivery or performance, or are unable to carry out delivery or performance, for any reason whatsoever, our liability is limited to the extent set out in Article 13 of these Terms of Sale and Delivery.
7.4. We cannot be held liable for the impossibility of, or delay in, performance of delivery obligations if, and to the extent that, such an impossibility or delay arises from circumstances caused by the client, in particular if the client fails to comply with public law obligations in connection with the European Regulations on Chemical Substances (REACH).
8. Partial deliveries
8.1. In the absence of any special agreement, we may provide partial deliveries if
- the partial delivery can be used by the client in the context of the contractually agreed intended use,
- delivery of the remaining goods is ensured and
- this causes no extensive additional effort or additional costs to the client.
8.2. A partial delivery made under these conditions is considered a complete delivery with regard to the agreed delivery date.
9. Default of acceptance
Should the client be in default of acceptance or culpably in breach of other duties to cooperate, we shall be entitled to charge for the resulting damages, including any additional costs incurred. In this case, the risk of accidental loss or incidental deterioration of the purchased goods also passes over to the client at such time as the client falls into default of acceptance, provided that our delivery obligation has already been met with regard to the goods to be delivered.
10. Intended use of the goods, obligations of the client, liability
10.1. If we have made a pledge for certain products to effect delivery contingent upon their intended use, the customer shall be liable for any and all disadvantages which we may suffer as a result of incorrect statements made. In the case of toxins and other substances which may only be used within the scope of legal or official provisions, the client's order shall also serve as a statement that these substances shall be used for a purpose permissible under the foregoing terms and conditions. The consumers of our goods are obliged to apply to our products the laboratory directives of the professional association of the chemical industry. They shall observe the legal regulations for handling the substances. Private persons cannot be supplied with chemicals.
10.2. Information given concerning the usability of goods does not constitute any assurance or guarantee of suitability for such use. Relevant identified uses according to Regulation (EC) No. 1907/2006 (REACH REGULATION) in the applicable version do not represent a contractual guarantee of any characteristic or a use stipulated in the contract.
10.3. Our products must be checked by the user with respect to their specific suitability, particularly prior to use for medical purposes, for food and beverage processing, plant cultivation and similar applications. This applies in particular to natural substances, which are always subject to slight variation in content. We therefore cannot assume any liability for any such use.
10.4. Insofar as we provide the client with advice ‒ whether verbally, in writing or as a result of tests ‒ such advice is provided to the best of our knowledge but without liability on our part, and does not release the client from their obligation to check the delivered goods with respect to their suitability for the intended processes and purposes. Application, use and processing of goods are carried out beyond the scope of our control and are therefore the sole responsibility of the client.
11. REACH clause
If the customer notifies us of a use in accordance with Article 37.2 of the Regulation (EC) No.1907/2006 of the European Parliament and the Council for the Registration, Evaluation, Approval and Control of chemical substances (REACH Regulation) which requires updating of the registration or the chemical safety report or results in another obligation according to the REACH Regulation, the customer shall reimburse us all expenses for which evidence is provided. We shall not be liable for delays in delivery caused by the notification of this form of use and performance of the applicable obligations as stipulated by the REACH Regulation. If, for reasons of health and safety or environmental protection, we are unable to consider this use an identified use and should the client, against our advice, intend to use the goods in the manner which have advised against, we shall be entitled to withdraw from the contract.
12. Warranty for defects, obligation to give notice of defect, material defects
12.1. Claims relating to material defects will be barred one year after delivery to the client. In the event that approval is required, they will be barred from the point of approval. This period shall not apply to damage claims by the client in the case of fatalities, physical injuries, or damage to health or deliberate or grossly negligent breach of duties on our part or on the part of our agents; such claims expire in accordance with statutory provisions.
12.2. The statute of limitations in case of delivery regress according to Sections 478, 479 of the German Civil Code remains unaffected.
12.3. The delivered goods must be carefully inspected immediately upon delivery to the client or to a third party designated by the client. Approval shall be deemed given if we do not receive a written notice of defect with regard to visible defects or other defects detectable during an immediate and careful inspection within seven working days after delivery of the goods. With regard to other defects, the delivered goods shall be deemed approved by the client if we do not receive notice of a defect within seven working days after the discovery of the defect. If the defect was noticeable by the client during normal use at an earlier point in time, however, this earlier point in time shall define the commencement of the defect notification period.
12.4. Rejected goods must no longer be used without our explicit consent. Upon request, the defective delivery item shall be returned to us freight paid. If the notice of defect is justified, we shall reimburse the cost of the cheapest shipping method. This shall not apply if the cost increases because the delivery item is transferred to a place other than the designated place of delivery.
12.5. Insofar as we are liable for a defect in goods purchased from us, we are entitled to correct the fault or replace the relevant product at our option and within a reasonable period of time. If the correction/repair or replacement delivery fails, i.e. if it is not possible, unreasonable, rejected or unreasonably delayed, the client shall be entitled to withdraw from the contract or to reduce the purchase price by a reasonable amount.
12.6. In cases where faults are attributable to us, the client shall be entitled to claim for damages subject to the provisions defined in Article 13.
13. Liability, special provisions for compensation for damages, exclusions, limitations
13.1. Our liability for damages, regardless of the legal basis, in particular for impossible, late, defective or incorrect delivery, breach of contract, violation of obligations during contractual negotiations and unlawful actions, provided that fault is established, shall be governed by the provisions of this Article 13, notwithstanding Article 12 above.
13.2. We cannot be held liable in the event of simple negligence by our executive bodies, legal representatives, employees or other vicarious agents, unless essential contractual obligations are breached. Obligations essential to the contract are those that give the contract its specific character and upon which the contracting partner can rely. They are therefore essential rights and obligations, which create the preconditions for execution of the contract and are indispensable for fulfilment of the contractual purpose.
13.3. Insofar as we are liable to pay compensation for damages under the terms of Article 13(2), this liability shall be limited to such damage that was foreseeable as a possible consequence of breach of an obligation at the time of execution of contract, or which we should have been able to foresee had we applied due diligence. Indirect damage and consequential damage arising from defects in the delivered goods shall only be eligible for compensation to the extent that such damage can be typically expected when using the delivered goods as intended.
13.4. Insofar as we issue technical information or provide consulting services, and such information or consulting services are not part of our contractual duties, this assistance will be rendered free of charge and shall be exempt from any liability.
13.5. The above exemptions and limitations of liability apply analogously to our institutions, legal representatives, employees and other vicarious agents.
13.6. The foregoing restrictions as stipulated under Article 13 do not apply to our liability with regard to wilful conduct, guaranteed features, culpable injury to life, limb or health and under the German Product Liability Act. Mandatory statutory liability provisions shall remain unaffected.
14. Withdrawal by client
If the purchased item is defective, the legal right of the purchaser to withdraw from the contract shall not be subject to our culpability. In all other cases, the client shall only be entitled to withdraw in the event that we are in breach of obligations for which we are accountable.
15. Consequences of deterioration in the financial circumstances of the client
15.1. In the case of default and justified doubt regarding the solvency or credit-worthiness of the client, we shall –- notwithstanding our other rights – be entitled to request guarantees or advance payments for outstanding deliveries and demand immediate payment of all claims resulting from the business relationship.
15.2. We may withdraw from the contract in the event that we become aware of suspension of payments, the opening of insolvency or judicial settlement proceedings, the refusal of insolvency due to lack of assets, bill protests or cheque protests or any other tangible indications that the financial circumstances of the client have deteriorated.
15.3. We are also entitled, at any time, to obtain information relevant to the financial circumstances of the client in order to establish whether a business relationship is justified or whether it should be continued.
16. Retention of title
16.1. The retention of title agreed to hereinafter serves to safeguard all existing and future claims that we may have against the client as a result of the business relationship between both parties.
16.2. We, the seller, will retain the right to ownership of the goods delivered to the client until full payment has been made for all secured receivables. The goods and any goods taking their place and subject to reservation of title under the following provisions shall hereinafter be referred to as "Reserved Goods".
16.3. The client shall ensure the safekeeping of the Reserved Goods on our behalf at no charge.
16.4. The client is entitled to process and resell the Reserved Goods in normal business transactions until such time as a claim is brought against it. It is not permitted to pledge Reserved Goods or to use Reserved Goods as collateral.
16.5. If the Reserved Goods are processed by the client, it is agreed that they will be processed in our name and for our account and that we will acquire direct title to them or ‒ if they are processed together with items from more than one owner or the value of the processed item is greater than the value of the Reserved Goods – we will acquire (partial) joint ownership of the newly-created item. In the event that we do not acquire such title to goods, the client shall herewith transfer future ownership or, to the extent specified above, joint ownership of the newly-created item to us as a security. If the Reserved Goods are compounded or inseparably combined with other items and if one of the other items is considered the main item, then, insofar as the main item belongs to us, we shall transfer the co-ownership in the combined item proportionally to the client in the ratio stated in sentence 1.
16.6. In the event of the resale of Reserved Goods, the client shall, by way of a security, herewith transfer the resulting accounts receivable from the buyer or our pro-rata share – in the case of joint ownership – to us. The same shall apply to any other claims that take the place of Reserved Goods or otherwise accrue with respect to reserved goods, such as insurance claims or claims arising from unauthorised actions in case of loss or irreparable damage. We hereby revocably authorise the client to collect receivables assigned to us on its own behalf. We shall only be entitled to revoke this authorisation for collection in the event that a claim is made.
16.7. Where third parties lay claim to the Reserved Goods, particularly through garnishment, the client shall notify us in writing without delay, so that we can take action to enable the assertion of our ownership rights. Unless the third party is in a position to reimburse us for legal expenses and out-of-court settlement costs, the client shall be liable for our loss.
16.8. We shall undertake to release the Reserved Goods, as well as any goods or claims superseding the Reserved Goods, should their value exceed the amount of the secured receivables by more than 50%. The selection of the securities subsequently to be released shall be incumbent upon us.
16.9. Should we withdraw from a contract due to a breach of contract on the part of the client, particularly with regard to delayed payment, then we shall be entitled to demand the return of the Reserved Goods.
17. Use of client data
17.1. We are entitled to process and save client data stemming from the contractual relationship to the extent necessary to implement and process the purchase contract and for as long as we are required to keep such data in accordance with statutory regulations.
17.2. We reserve the right to disclose client personal data to rating agencies to the extent necessary for credit checking purposes, provided that the client provides their express consent for us to do so in the individual case. We shall otherwise not divulge personal client data to third parties unless explicitly agreed by the client, with the exception of cases in which we are legally obliged to release such data.
17.3. The collection and/or transfer of client data, or processing by other means, for purposes other than those stated in Article 16, shall not be permissible.
18. Place of fulfilment, place of jurisdiction, choice of law
18.1. Unless otherwise specified in the order confirmation, the place of performance for all obligations arising from the contractual relationship shall be Karlsruhe.
18.2. If the client is a merchant, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contract shall be the court of our registered office. However, we are also entitled to bring action against the client in their domicile court. Peremptory legal provisions concerning the exclusive place of jurisdiction for disputes shall not be affected by this provision.
18.3. The laws of the Federal Republic of Germany exclusively govern the relationship between us and our client. The United Nations Convention of 11th April 1980 on the International Sale of Goods (KEGS) does not apply.
Carl Roth GmbH + Co. KG
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