1. Validity for future business transactions – Validity of contrary General Terms and Conditions – Validity for companies only
1.1. Our Terms and Conditions of Sale and Delivery apply exclusively. They shall also apply to all future deliveries, even when no special reference is made thereto. We do not accept any contrary terms and conditions or those terms and conditions of the customer which differ from our Terms and Conditions of Delivery, even if the contract is performed unconditionally, unless we have expressly agreed to the validity thereof in writing or in text form.
1.2. Our Terms and Conditions of Sale shall only apply to entrepreneurs (in accordance with Section 14 German Civil Code [BGB]), 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 customer shall be deemed to be a binding contractual offer. Orders are only binding for us if we confirm them in writing or in text form within two weeks, or if we fulfil them within two weeks through shipment of the ordered goods.
2.3. The legal relationship between the customer and us shall be governed exclusively by the contract, which has been signed in writing or in text form, including these general Terms and Conditions of Sale and Delivery. Verbal agreements made by us before the contract is formed are not legally binding and verbal understandings between the parties are superseded by the contract that is formed in writing or in text form, unless it is expressly stated therein that such agreements will continue to apply.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 and Conditions of Sale and Delivery, must be made in writing or in text form 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 representations 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, electronic invoicing
3.1. Our prices are quoted "ex works" from Karlsruhe, according to 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 customer 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.
3.3. We provide an electronic invoice in compliance with data protection legislation. This presumes the formation of a separate agreement.
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 when the payment is made. 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 or in text form, 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 customer is considered to be in default 30 days after receipt of the goods at the latest, according to Section 286(4) German Civil Code. The date of receipt of payment is decisive. 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 customer payables arising from the business relationship with us that are older than 30 days.
4.4. For new customers, 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 customer 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 incidental deterioration of the delivered goods is, at the latest, transferred to the customer upon handover 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 customer and at the customer's expense.
7. Delivery time
7.1. The promised delivery periods and dates are only binding for us if we have confirmed them in writing or in text form. 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 customer's obligations. If shipping has been agreed, delivery dates and deadlines refer to the time of transfer to the forwarding agent, 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, epidemics or pandemics where a risk level of "moderate" or above has been defined by the Robert Koch Institute, 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 customer of the start and end of such circumstances as promptly as possible. If such a delay makes acceptance of delivery unreasonable for the customer, the customer shall be entitled to withdraw from the contract by issuing immediate notice in writing or in text form.
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 and Conditions 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 customer, in particular if the customer 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 customer 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 customer.
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 customer 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 customer at such time as the customer 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 customer, 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 customer's order shall also serve as a statement that these substances shall be used for a purpose permissible under the foregoing terms and conditions. They shall observe the legal regulations when handling or using the substances, mixtures and products supplied by us. 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 nor a use stipulated in the contract.
10.3. Our products shall be checked by the user with respect to their specific suitability, particularly prior to use for medical purposes, 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. Where a product comes with specific conditions for use provided by us or the manufacturer, e.g. regarding biocides, these must be complied with. We expressly accept no liability for any use to the contrary.
10.5. Insofar as we provide the customer with advice – be this 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 customer from the obligation to check the delivered goods with respect to their suitability for the intended processes and purposes. The application, use and processing of goods is carried out beyond the scope of our control and is therefore the sole responsibility of the customer.
11. REACH clause
If the customer notifies us of a use according to Article 37.2 of the Regulation (EC) No.1907/2006 dated 11.06.2019 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. Art. 53 of the REACH Regulation remains unaffected. 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 customer, against our advice, intend to use the goods in the manner which we have advised against, we shall be entitled to withdraw from the contract.
12. Claims for defects, compensation
12.1. Claims for defects are subject to the prerequisite that the customer has properly performed their duties to examine and give notice of defects according to Section 377 German Commercial Code [HGB].
12.2. Rejected goods must no longer be used without our explicit written consent. Where notification of defects is justified, we undertake to bear the costs of all expenses required for rectification of the defects, in particular transportation, travel, labour and material costs. This shall not apply insofar as the expenses increase as a result of the delivery item being subsequently delivered to a location that differs from the one specified in the contract. The buyer's rights according to Section 439(3) German Civil Code shall not be restricted as a result.
12.3. Insofar as we are liable for a defect in goods purchased from us, we are entitled to correct the defect or replace the relevant product at our option and within a reasonable period of time. The place of subsequent performance is our registered office (Karlsruhe, Germany). If this subsequent performance or replacement delivery fails, i.e. if it is impossible, unreasonable, rejected or unreasonably delayed, the customer shall be entitled to withdraw from the contract or to reduce the purchase price by a reasonable amount, where statutory requirements are present.
12.4. If a defect is attributable to us, the customer is entitled to claim for compensation exclusively according to the following provisions.
12.5. In the case that an essential contractual obligation is culpably breached (a cardinal obligation), where statutory requirements are present, we shall be liable for compensation, but only limited to the foreseeable damages typically incurred, unless otherwise specified below. Cardinal obligations are those which must be fulfilled as part of the proper execution of the contract in the first instance, the fulfilment of which the buyer may rely on and which if breached would jeopardise the achievement of the purpose of the contract.
12.6. The customer is entitled to assert claims for compensation against us, without restriction, according to the statutory provisions and at the statutory rate, if these are attributable to us, one of our legal representatives or vicarious agents and are based on
– a culpable loss of life, physical injury or damage to health, or
– an intentional or grossly negligent breach of duty, or
– the Product Liability Act, or
– a breach of a duty arising from an assumption of procurement risk or warranty.
12.7. Any further claims to compensation against us, our legal representatives or vicarious agents are excluded, regardless of their legal basis.
12.8. Section 478 German Civil Code remains unaffected by the above provisions.
12.9. The bases of claims relating to data protection law are not covered by this limitations of liability clause.
13. Limitation period
13.1. Claims on the part of the buyer concerning material defects shall become time-barred after one year, unless
a) the goods supplied by us include an item which has been used for a building in accordance with its normal use and has caused a defect in the latter, or
b) the defect was maliciously concealed or is based on an intentional breach of duty by us or our legal representatives or vicarious agents, or
c) they relate to a culpable loss of life, physical injury or damage to health, or
d) they relate to claims based on a warranty or procurement risk assumed by us, or
e) they relate to claims to compensation (with the limitation of Item 13.2.).
The statutory limitation period applies in the cases above.
13.2. Claims to compensation which are based on refused subsequent performance are subject to a shortened limitation period of one year if subsequent performance has not been requested within the period shortened to a year for claims concerning material defects.
13.3. The statutory limitation periods also apply in the event of claims according to Section 445a German Civil Code if the last contract in the supply chain is a consumer goods contract in the meaning of Section 474 German Civil Code.
14. Withdrawal by the customer
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 customer shall only be entitled to withdraw in the event that we are in breach of obligations for which we are accountable.
15. Return of defect-free goods
Insofar as we accept the return of defect-free goods, this shall only apply to new goods in original packaging. We are entitled to charge the customer any third-party costs which we incur as a result of the return up to 25% of the list price of the goods.
16. Consequences of deterioration in the financial circumstances of the customer
16.1. In the case of payment arrears and justified doubts concerning the solvency or creditworthiness of the customer, we are – irrespective of our other rights – authorised to request guarantees or advance payments for outstanding deliveries and set all claims arising from the business relationship to payable immediately.
16.2. We may withdraw from the contract in the event that we become aware of the 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 customer have deteriorated.
17. Retention of title
17.1. The retention of title agreed to hereinafter serves to safeguard all existing and future claims that we may have against the customer as a result of the supply relationship between the two parties.
17.2. We, the seller, shall retain the right to ownership of the goods delivered to the customer until full payment has been made for all secured receivables. The goods and any goods taking their place and subject to retention of title under the following provisions shall hereinafter be referred to as "Reserved Goods".
17.3. The customer shall ensure the safekeeping of the Reserved Goods on our behalf at no charge.
17.4. The customer shall be entitled to process and resell the Reserved Goods in normal business transactions until such time as a claim is made against them. It is not permitted to pledge Reserved Goods or to use Reserved Goods as collateral.
17.5. If the Reserved Goods are processed by the customer, 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 customer 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 to form a single item 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 of the single item proportionally to the customer in the ratio stated in sentence 1.
17.6. In the event of the resale of Reserved Goods, the customer shall, by way of a security, herewith transfer to us the resulting accounts receivable from the buyer or our pro rata share in the case of joint ownership. 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 authorise the customer on a revocable basis 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.
17.7. In the event that third parties lay claim to the Reserved Goods, particularly through seizure, the customer shall without delay inform them of our ownership and notify us in writing, so that we can take action to enable 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 customer shall be liable for our loss.
17.8. We 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.
17.9. Should we withdraw from a contract due to a breach of contract on behalf of the customer, particularly with regard to delayed payment (enforcement event), then we shall be entitled to demand that the Reserved Goods be returned.
18. Export control clause
18.1. When transferring our goods or services performed by us to third parties, the customer undertakes to observe and comply with the relevant applicable national and international legal regulations with regard to export control. This includes, but is not limited to, compliance with legal regulations governing export control in the European Union, the United States of America and the Federal Republic of Germany.
18.2. Prior to transferring our goods or services performed by us to third parties, the customer undertakes to ensure by means of suitable checks and measures that such transfer or provision does not constitute a violation of embargo regulations, including but not limited to those applicable in the European Union and the United States of America, also taking into account any anti-circumvention provisions.
18.3. The customer also undertakes to observe the provisions of European and US sanctions lists with regards to any business activities with organisations, individuals and companies listed therein. The customer also undertakes to guarantee that the use or transfer of our goods and services does not serve any military or arms-related purposes that are prohibited or require authorisation, unless the necessary authorisations have been granted.
18.4. If deemed necessary as a result of any checks, the customer is obligated to provide us upon request and without delay with all information regarding the end use, end recipient and intended use of our supplied goods and services.
18.5. The customer shall fully indemnify us against all claims asserted by the recipient as a result of the failure to comply with the above legal obligations regarding export control and undertakes to compensate us for the losses and expenses arising from such claims.
19. Information on brands and other industrial property rights
Please contact the relevant manufacturer or owner for information on brands and other industrial property rights. We are happy to help you in this process.
20. Use of customer data, data protection
21. Place of performance, place of jurisdiction, choice of law
21.1. Unless specified otherwise in the order confirmation, the place of performance for all obligations arising from the contractual relationship is Karlsruhe, Germany.
21.2. The exclusive place of jurisdiction for all disputes arising from the contract is, if the customer is a merchant, a legal person governed by public law or a separate legal entity under public law, the competent court for our head office. However, we are also entitled to bring action against the customer in their domicile court. Peremptory legal provisions concerning the exclusive place of jurisdiction for disputes shall not be affected by this provision.
21.3. The laws of the Federal Republic of Germany exclusively govern the relationship between us and our customer. The United Nations Convention of 11th April 1980 on the International Sale of Goods (CISG) does not apply.
Carl Roth GmbH + Co. KG