Terms of Use for D|PLUS
Version 1
General Terms and Conditions
for the Sale of Goods and Services
of the Companies of DöhlerGroup
I. Scope of Application, Formal Requirements
1. These General Terms and Conditions for the Sale of Goods and Services (hereinafter GTCS) apply to all companies of DöhlerGroup, irrespective of their legal form, with registered office in Germany. These companies are the companies under German law affiliated with Döhler Group SE with registered office in Darmstadt, Germany, registered with the Commercial Register of the Darmstadt Local Court under HRB 95005, i.e., in particular,
• Döhler GmbH, Darmstadt
• Döhler Dahlenburg GmbH, Dahlenburg
• Döhler Eisleben GmbH, Eisleben
• Döhler Neuenkirchen GmbH, Neuenkirchen
• Döhler Neuss GmbH, Neuss
• Kelterei Knill GmbH, Oberteuringen.
2. In these GTCS, each individual company of DöhlerGroup is referred to as "we" or "us" or "Döhler" or the "Seller."
3. These GTCS apply exclusively to all of our business relationships with our customers (hereinafter: the Purchaser) regarding the sale of goods or the provision of services.
These GTCS therefore apply in particular to:
• the sale of products (e.g., ingredients for the production of foods and beverages, culture media and laboratory equipment), irrespective of whether we have manufactured these products ourselves or sell them only as an intermediary;
• the provision of services (contract manufacturing, sensory & consumer science, general consulting services)
The GTCS apply only if the Purchaser is an entrepreneur within the meaning of Sec. 14 German Civil Code or a legal entity under public law. Unless agreed otherwise, these GTCS apply in the version applicable at the time when the Purchaser places the order or, in any case, in the version last provided to the Purchaser in writing as a framework agreement for similar contracts to be entered into in the future without us having to expressly refer to them again in each individual case.
4. Our GTCS apply exclusively. Any deviating, contrary or supplementary general terms and conditions of the Purchaser (hereinafter: Purchaser's GTC) form a part of these GTCS only if and to the extent that we expressly consented to their applicability. Such consent is required under any circumstances, including, for example, if we, being aware of the Purchaser's GTC, effect the delivery to such Purchaser without reservations.
5. Any individual agreements made with the Purchaser in an individual case (including side letters, supplements and amendments) shall in any case prevail over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive regarding the contents of such agreements.
6. Any legal declarations or notices issued by the Purchaser with respect to the contract (e.g., deadlines, notice of defects, notice of rescission or reduction) shall be made in writing, i.e., in written or text form (e.g., letter, e-mail, facsimile). Statutory requirements as to form and further proof, in particular in the event of doubts as to the issuer's authority, shall remain unaffected.
7. References to the applicability of statutory provisions are made for the avoidance of doubt only. Accordingly, even without such reference, the statutory provisions apply unless they are directly altered or expressly excluded in these GTCS.
II. Quotations, Orders, Deviations
1. Unless expressly provided for otherwise in our quotation, our quotations are generally non-binding until the order is confirmed by us. This also applies to any catalogues, technical documentation (e.g., references to DIN standards) or other product descriptions or documents (also in electronic format) provided to the Purchaser, in which we reserve any and all rights, in particular ownership and copyrights. If we do not accept the offer of the Purchaser within the period indicated in Clause II no. 2, such documents shall be returned to us promptly. Our quotations do not include VAT.
2. The Purchaser's order of the goods shall be deemed a binding contractual offer. Unless provided for otherwise in the order, we are entitled to accept this contractual offer within one (1) week following receipt thereof. The contract shall only be deemed entered into once the order has been confirmed in writing (text form is sufficient) or once the goods have been delivered.
3. We provide the information as regards the usability and suitability of our products to the best of our knowledge. Such provision of information constitutes neither a description of the quality of our products nor a representation or warranty. This also applies to any other public statements made by us, the manufacturers of the products delivered by us or their agents, in particular in advertising or on the product labels.
4. The target quality of our products is determined solely by the agreed specifications.
5. The customary deviations in quality, shape and color apply to any product to be delivered and to any raw materials used by us.
III. Delivery and Performance Period, Default of Delivery, Force Majeure
1. The delivery period will be agreed on a case-by-case basis or specified by us in writing when accepting the order. Clause II no. 2 above shall apply. Unless agreed otherwise in an individual case, the delivery period shall be between four (4) and six (6) weeks following conclusion of the contract or confirmation of the order. Unless expressly agreed otherwise in an individual case, agreed delivery periods are generally non-binding.
2. We are entitled to carry out partial deliveries and/or render partial performance.
3. Purchase orders and other orders for individual partial deliveries shall be placed in such a way that we are able to manufacture, package and deliver the product or products as contractually agreed.
4. If, in a particular case, we are unable to keep agreed delivery periods for reasons beyond our control, i.e., if we are unable to perform, we will inform the Purchaser promptly of this and indicate at the same time the expected new delivery period. If we are unable to perform also within the new delivery period, we are entitled to rescind the contract in whole or in part; any consideration already provided by the Purchaser will be reimbursed promptly. In particular, a delay in delivery to us from our suppliers shall be deemed an inability to perform for the purposes of this paragraph.
5. Any default of delivery on our part shall be determined in accordance with the statutory provisions. In any case, however, the Purchaser is required to send a reminder.
6. We are not liable for delays in delivery and performance due to force majeure. Events of force majeure entitle us to postpone the delivery for the duration of the impediment and a reasonable lead time or rescind the contract in whole or in part with respect to the part of the contract not performed yet. Strikes, lockouts, mobilization, war, blockades, import and export bans, epidemics/pandemics and other government intervention, whether such events affect us or our suppliers, shall be treated the same as events of force majeure. We shall inform the Purchaser promptly of any occurrence of an event of force majeure impeding any delivery to be made by us. If the impediment lasts for more than two (2) months, the Purchaser may, after having provided a reasonable grace period, rescind the contract with respect to the part of the contract not performed yet. In the case of contracts having a term of six (6) months or more, the obligations to perform shall be suspended for the duration of the impediment and extinguish if one of the contractual parties cannot be reasonably expected to perform them later. Any advance payments already made by the Purchaser in this respect will be reimbursed promptly.
7. In the event of contract work to be provided by us, we require that the primary materials/components of suitable quality be delivered to us carriage free in time. If these requirements are not met, we are entitled to extend the delivery period or rescind the contract and/or to claim damages. Our inspection upon reception of primary materials/components is limited to identity and quantity checks.
8. Further legal claims and remedies of the Purchaser on grounds of a default of delivery shall remain unaffected.
IV. Prices, Terms of Payment and Default of Payment
1. Unless agreed otherwise in a particular case, our current prices applicable at the time the contract is entered into apply. Our prices are net prices, i.e., plus the applicable VAT and any other applicable duties, taxes, fees and public levies.
2. The purchase price is due and payable within 14 days of invoice and delivery or acceptance of the goods. We are, however, entitled at any time, including under an ongoing business relationship, to make a delivery in whole or in part subject to prepayment. We will provide notice of such reservation at the latest in the order confirmation, without a special reminder being required.
3. Upon expiration of the above period allowed for payment, the Purchaser will be in default. During such default, the Purchaser shall pay interest on the purchase price at the applicable statutory default interest rate of currently 9 percentage points above the base rate. We reserve the right to assert any claims on grounds of further damage caused by default. In relation to merchants, our claim to commercial default interest (Sec. 353 German Commercial Code) shall remain unaffected.
4. Irrespective of any contrary terms and conditions of the Purchaser, we are entitled to set off payments first against the Purchaser's older liabilities. If costs and interest have already been incurred, we are entitled to set off payments first against the costs, then against the interest and last against the principal amount.
5. We are entitled to issue invoices in electronic form (by e-mail or as an e-mail attachment). If the Purchaser requests a hardcopy invoice, we are entitled to charge EUR 10 per invoice for expenses.
6. Any payment is only deemed to be made when the relevant amount is at our disposal. A payment made by check is only deemed to be made when the check has been honored. If payment by direct debiting has been agreed, any payment is only deemed to be made when the relevant amount is irrevocably at our disposal. Bills of exchange are permitted only with our consent. Bills of exchange will be accepted only on account of payment and subject to their eligibility for discounting.
7. If the Purchaser fails to meet its payment obligations, in particular if the Purchaser fails to honor a check, revokes a payment in an agreed direct debiting scheme or discontinues its payments, or if we learn of any other circumstances that raise doubts as to the Purchaser's credit standing, we are entitled to accelerate the maturity and demand immediate payment of the remaining debt, including if we have accepted checks.
8. If the Purchaser does not meet its payment obligations or does not meet them in time, we are entitled to refuse our performance in whole or in part until the amounts due have been paid or security has been provided. If the Purchaser is in default of payment, we also have the right to accelerate the maturity and demand immediate payment of all claims against the Purchaser.
9. If, after the contract has been entered into, it becomes apparent (e.g., because a petition for the opening of insolvency proceedings has been filed) that our claim to the purchase price is put at risk due to the Purchaser's inability to pay, we are entitled under the statutory provisions to refuse performance and – after having provided a grace period, where applicable – to rescind the contract (Sec. 321 German Civil Code). In the case of contracts for the production of specific items (custom-made products), we may give immediate notice of rescission; the statutory provisions as to where providing a grace period is not required shall remain unaffected.
IV. Assignment, Right of Set-off and Retention
1. Our claims may be set off only against counterclaims that are undisputed or have been allowed by a final and non-appealable decision. In the event of defects in the delivery, the rights of the Purchaser as set forth in Clause VII. hereof shall remain unaffected. Any right of retention arising from previous or other transactions of the ongoing business relationships cannot be exercised.
2. We are entitled to assign any and all claims against the Purchaser to a third party and in particular to any of our affiliates without requiring the Purchaser's consent.
V. Packaging, Shipping and Transport
1. The goods will be shipped either in disposable packaging, which will not be invoiced and the ownership in which will pass to the Purchaser, or in returnable packaging (V2A tanks, containers, boxes, reusable pallets, etc.).
The Purchaser shall dispose of any disposable packaging properly at its own expenses and agrees to do so even if we are required by law to accept the return of disposable packaging. At our request, the Purchaser shall provide us with appropriate proof of proper disposal.
Any returnable packaging shall be returned to us free of charge promptly after having been emptied without any residue and rinsed out in good order and clean condition.
2. In the event of damage, loss or destruction of individual items of returnable packaging, the Purchaser shall bear the full replacement costs.
3. Unless agreed otherwise, our deliveries will be made ex works, ex production site or ex warehouse (FCA Incoterms® 2020).
4. Unless a specific shipping method is expressly agreed with the Purchaser, we reserve the right to determine the shipping method. Shipping and transport will be at the Purchaser's expenses and risk.
5. Promptly after having received the delivery, the Purchaser shall inspect the goods for any transport damage or missing quantities and notify the Seller promptly in writing of any deficiency detected. The Purchaser shall provide the relevant certificates issued by the forwarding agent that prove the transport damage or missing quantities.
VI. Contracts
1. The contract volume and the contract duration are binding for us and the Purchaser.
2. Unless agreed otherwise in writing, orders under the contract volume shall always be made on a pro rata temporis basis per month, i.e., if the contract duration is twelve months, for example, one twelfth of the contract quantity shall be ordered per calendar month, provided that the minimum quantity stipulated in the contract is adhered to.
3. Orders shall always be made in writing (text form).
4. Unless lead times for the delivery of the goods have been agreed in writing, the lead times shall be determined on the basis of the nature of the goods and our operational and planning requirements.
5. We may refuse the execution of individual orders if and as long as the Purchaser is in default of payment to the relevant Seller or any other company of DöhlerGroup.
6. Upon expiration of the contract duration, the Seller will be released from its obligation to perform even if the Purchaser has not ordered the contract volume at all, in full and/or in time. Any further delivery after expiration of the contract will be made on a non-binding basis and shall not be construed as a tacit extension of the contract duration.
7. The foregoing shall not affect our right to request upon expiration of the contract from the Purchaser to purchase within a reasonable grace period any contract quantities that have not been ordered or not been ordered in full. If the Purchaser does not order the quantities remaining under the contract within the grace period provided, the Seller may claim, in addition to asserting its claim to performance, damages for non-performance. Any delay or failure in making a request for purchase by the Seller does not release the Purchaser from its contractual obligation to perform the contract by purchasing the agreed quantities or pay damages for non-performance.
8. Our liability and the liability of our vicarious agents for the timely availability of the ordered contract goods shall be limited to liability for willful intent and gross negligence. We shall not be liable if the non-performance or late performance is due to grounds that are not connected to the nature of the obligation as an indeterminate obligation or cannot be attributed to the sphere of the Seller or its vicarious agents. In addition to events of force majeure, this applies also if the Seller or its vicarious agents cannot be reasonably expected to procure the goods due to impediments to performance caused by circumstances that are unforeseeable or beyond the control of the Seller or its vicarious agents, e.g., in the event of a blockade or lockout of a production and/or processing site.
9. If a legal provision enters into force after the conclusion of the contract resulting in an increase in import charges applicable to the agreed delivery period or parts thereof and this results in an increase in our verifiable expenses, the purchase price shall be adjusted for the relevant increase in expenses. For the purposes of this provision, import charges shall include customs duties, levies and excise duties.
VII. Notices of Defect and Warranties
1. The rights of the Purchaser in the event of defects as to quality and title shall be governed by the statutory provisions, unless provided for otherwise below.
2. Any warranty rights of the Purchaser apply only if the Purchaser has properly complied with its inspection and defect notification duties owed under Sec. 377 German Commercial Code. If a defect is detected upon delivery, during the inspection or at any later time, the Purchaser shall notify us thereof promptly in writing. In any case, obvious defects shall be notified in writing within three (3) workdays following receipt of the goods. Hidden defects, i.e., defects that cannot be detected in the inspection, shall be notified within three (3) workdays following detection. If the Purchaser fails to conduct a proper inspection and/or to notify the defects, our liability for any defect not notified at all or not notified timely or properly shall be excluded pursuant to the statutory provisions.
3. Any claim on grounds of defects shall become time-barred within twelve (12) months after the goods delivered by us have been delivered to the Purchaser, however, no later than upon expiration of the best-before date or period specified on the goods. Claims for damages caused by willful intent or gross negligence or for injury to life, body or health caused by an intentional or grossly negligent breach of duties committed by the Seller or its vicarious agents shall become time-barred as provided for by law. Any return of the goods shall require our prior consent.
4. Any notice of defect shall be accompanied by samples of the rejected goods.
5. If, despite all due care exercised, the goods delivered by us have any defect that had already been present when the risk passed, we will remedy the defect by rectification or supply of a replacement at our option, provided that a notice of defect has been provided in time. We shall always be given the opportunity to remedy the defect within a reasonable grace period. Our right to refuse to remedy the defect, where available under the applicable legal provisions, shall remain unaffected.
6. We will reimburse any expenses required in connection with the inspection and remediation, in particular transport costs, travel expenses, labor costs and cost of supplies, as provided for by law if there is actually a defect. Otherwise, we may request the Purchaser to reimburse any expenses resulting from the unjustified request to remedy a defect (in particular inspection and transport costs), unless it was not possible for the Purchaser to recognize the lack of defect. Any claims of the Purchaser with respect to the expenses required in connection with the remediation, in particular transport costs, travel expenses, labor costs and cost of supplies, shall be excluded to the extent that the expenses are increased because the goods delivered by us have been transported afterwards to a location other than the Purchaser's location, unless such transportation is in line with the intended use of such product.
7. If the remediation fails, is impossible or is seriously and finally refused by us, or if the Purchaser cannot be reasonably expected to accept the remediation, or if a grace period to be provided by the Purchaser for remediation expires without the defect having been remedied, or the Purchaser is not required by law to provide a grace period for remediation, the Purchaser is entitled, at its option, to reduce the purchase price (reduction) or rescind the contract (rescission). Upon the notice of rescission or the request for reduction having been made, the Purchaser's claim to delivery of a product free from defects shall extinguish.
8. Any claims of the Purchaser for damages or compensation for wasted expenditure are available in the event of defects only as provided for in Clause VIII. and shall be excluded otherwise.
9. The Purchaser may not derive any rights from defects that do not or only immaterially affect the value or the suitability of the goods for the intended use as recognizable by us.
10. The best-before dates specified by us are not use-by dates.
11. We may confirm the quality and thus the suitability of our products for the used intended by the Purchaser only if the Purchaser provides us in advance with detailed information in writing about the manner of the processing and use and guarantees that such manner will be adhered to. Such a confirmation by us constitutes a warranty and assumption of liability only if we expressly provide such warranty in writing.
12. To the extent we provide mandatory instructions for use and storage, the Purchaser shall be responsible for any adverse effects resulting from non-compliance with such instructions.
VIII. Other Liability
1. Unless provided for otherwise in these GTCS including the below provisions, we will be liable for any breach of contractual or non-contractual duties as provided for by law.
2. We are liable for damages – on whatever legal basis – in connection with fault-based liability for willful intent and gross negligence. We are liable for ordinary negligence, subject to statutory limitations of liability (e.g., care exercised in own affairs; immaterial breach of duty), only
a. for damage due to injury to life, body or health
b. for damage resulting from the breach of a material contractual duty (an obligation the fulfillment of which is indispensable for proper performance of the contract and on the fulfillment of which the other party typically relies and may rely); in such cases, however, our liability shall be limited to the foreseeable damage typically sustained.
3. The limitations of liability resulting from no. 2 above shall apply also to breaches of duty committed by or in favor of individuals the fault of which is attributable to us pursuant to statutory provisions. They do not apply to the extent we fraudulently conceal any defect or have provided a warranty for the quality of the goods and to claims of the Purchaser under the German Product Liability Act.
4. The Purchaser may rescind or terminate the contact on grounds of a breach of duty that does not constitute a defect only if the breach of duty is attributable to us. Any right of termination for convenience of the Purchaser shall be excluded. Otherwise, the statutory requirements and legal consequences shall apply.
5. If the product delivered by us is a trading good that we have purchased from an upstream supplier and resold to the Purchaser, we have the right to assign to the Purchaser any rights based on defects as to quality we may have against the upstream supplier and request from the Purchaser to have recourse against the upstream supplier. We are liable for defects of such trading goods only if claims against the upstream supplier cannot be enforced although they have been asserted in time and, where applicable, in court.
6. We are not liable for any recommendation, advice or sharing of know-how, except in the event of willful intent or gross negligence.
7. The Purchaser shall reimburse us for all fees, costs and expenses incurred by us in any legally successful enforcement of rights against the Purchaser.
IX. Retention of Title
1. Title to the sold goods shall remain vested in us until all our current and future claims under the sale and purchase agreement and an ongoing business relationship (secured claims) have been paid in full. The inclusion of individual claims in an ongoing invoice and any set-off and recognition thereof shall not affect the retention of title. Payment shall be deemed effected upon receipt of the consideration by us.
2. The Purchaser is entitled to resell the conditional goods in the ordinary course of business. The conditional goods may not be pledged or transferred for security purposes to third parties until the secured claims have been paid in full. The Purchaser shall notify us promptly in writing if a petition for the opening of insolvency proceedings is filed or third parties have recourse (e.g., attachments) to the goods belonging to us. Any costs of intervention shall be borne by the Purchaser. The Purchaser shall secure our rights when reselling conditional goods on credit.
3. The Purchaser shall treat the conditional goods with care and store them properly. In particular, the Purchaser shall, at its own expense, insure the conditional goods for replacement value sufficiently against damage caused by fire and water and against theft. The Purchaser hereby assigns to us any claim it may have under the aforementioned insurance policies to the extent the conditional goods are insured; we hereby accept such assignment.
4. The Purchaser hereby assigns to us any claims it may have under the resale of the conditional goods; we hereby accept such assignment. Irrespective of such assignment and our right to collection, the Purchaser is entitled to collection as long as the Purchaser meets its obligations owed to us and does not become illiquid.
5. To the extent the Purchaser refinances on a factoring basis, the Purchaser hereby assigns any claims it may have against the factor under such refinancing in the amount of the Purchaser's outstanding balance under the business relationship with us; we hereby accept such assignment.
6. If the conditional goods are resold together with other goods, whether without or after processing, combining, mixing or blending, the above assignment in advance applies only in the amount of the invoice value of the conditional goods that are resold together with other goods. At our request, the Purchaser shall provide us with the information about the assigned claims required for collection purposes and disclose the assignment to the debtors.
7. If the Purchaser performs any processing or finishing of the conditional goods on our behalf, this shall not give rise to any obligations for us. In the event of processing, combining, mixing or blending of the conditional goods with other goods we do not own, we are entitled to the resulting co-ownership share in the new product in the proportion of the invoice value of the conditional goods to the other processed goods applicable at the time of the processing, combining, mixing or blending. If the Purchaser acquires sole ownership in the new product, the contractual parties agree that the Purchaser shall grant us co-ownership in the new product in the proportion of the invoice value of the processed, combined, mixed or blended conditional goods and shall keep the new product safe for us free of charge.
8. If the Purchaser is in breach of contract, in particular in default of payment, we are entitled to rescind the contract pursuant to the statutory provisions and demand that the conditional goods be returned. Such demand for return does not constitute at the same time a notice of rescission but only a demand for the goods to be returned and a notice of reservation of our right to rescind. If the Purchaser fails to pay the purchase price when due, we may exercise these rights only after we have provided the Purchaser with a reasonable grace period for payment and such grace period has expired without the purchase price having been paid, unless it is not required by law to provide such a grace period.
9. We agree to release the security to which we are entitled pursuant to the above provision at the Purchaser's request to the extent the value exceeds the claims to be secured by more than 20%.
X. Governing Law and Place of Jurisdiction
1. These GTCS and all contractual relationships between us and the Purchaser shall be governed by the law of Germany, without regard to the applicable conflict of law rules and any international and supranational law (treaties), in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. Place of performance and exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly out of the contractual relationship is the location of the Seller's registered office. Notwithstanding the foregoing, we may sue the Purchaser also in courts normally having jurisdiction over the Purchaser.
XI. Miscellaneous
1. To the extent permitted by applicable law, in particular under data protection law, we will store and process data and information which is disclosed to us or of which we learn in connection with the cooperation. The Purchaser hereby agrees with and consents to the sharing of such data and information with our affiliates.
2. To the extent the use of our products is subject to special legal requirements, the Purchaser is responsible for complying with such requirements and for verifying whether our products are suitable for the specific use intended.
3. The products delivered by us may not be reverse engineered. In particular, they may not be reverse engineered with the aim of determining the chemical composition or product design. Any transfer of our products to third parties with the aim of copying our products or developing generic products that are as similar as possible to our products is strictly prohibited.
4. If any provision of these GTCS is or becomes invalid, this shall not affect the validity of the remainder hereof. The invalid or unenforceable provision shall be replaced by such valid and enforceable provision which comes closest to the economic effect intended by the Parties for the invalid or unenforceable provision. The above applies accordingly to any gaps contained herein.
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WEIL:\97426441\1\99997.0001
for the Sale of Goods and Services
of the Companies of DöhlerGroup
I. Scope of Application, Formal Requirements
1. These General Terms and Conditions for the Sale of Goods and Services (hereinafter GTCS) apply to all companies of DöhlerGroup, irrespective of their legal form, with registered office in Germany. These companies are the companies under German law affiliated with Döhler Group SE with registered office in Darmstadt, Germany, registered with the Commercial Register of the Darmstadt Local Court under HRB 95005, i.e., in particular,
• Döhler GmbH, Darmstadt
• Döhler Dahlenburg GmbH, Dahlenburg
• Döhler Eisleben GmbH, Eisleben
• Döhler Neuenkirchen GmbH, Neuenkirchen
• Döhler Neuss GmbH, Neuss
• Kelterei Knill GmbH, Oberteuringen.
2. In these GTCS, each individual company of DöhlerGroup is referred to as "we" or "us" or "Döhler" or the "Seller."
3. These GTCS apply exclusively to all of our business relationships with our customers (hereinafter: the Purchaser) regarding the sale of goods or the provision of services.
These GTCS therefore apply in particular to:
• the sale of products (e.g., ingredients for the production of foods and beverages, culture media and laboratory equipment), irrespective of whether we have manufactured these products ourselves or sell them only as an intermediary;
• the provision of services (contract manufacturing, sensory & consumer science, general consulting services)
The GTCS apply only if the Purchaser is an entrepreneur within the meaning of Sec. 14 German Civil Code or a legal entity under public law. Unless agreed otherwise, these GTCS apply in the version applicable at the time when the Purchaser places the order or, in any case, in the version last provided to the Purchaser in writing as a framework agreement for similar contracts to be entered into in the future without us having to expressly refer to them again in each individual case.
4. Our GTCS apply exclusively. Any deviating, contrary or supplementary general terms and conditions of the Purchaser (hereinafter: Purchaser's GTC) form a part of these GTCS only if and to the extent that we expressly consented to their applicability. Such consent is required under any circumstances, including, for example, if we, being aware of the Purchaser's GTC, effect the delivery to such Purchaser without reservations.
5. Any individual agreements made with the Purchaser in an individual case (including side letters, supplements and amendments) shall in any case prevail over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive regarding the contents of such agreements.
6. Any legal declarations or notices issued by the Purchaser with respect to the contract (e.g., deadlines, notice of defects, notice of rescission or reduction) shall be made in writing, i.e., in written or text form (e.g., letter, e-mail, facsimile). Statutory requirements as to form and further proof, in particular in the event of doubts as to the issuer's authority, shall remain unaffected.
7. References to the applicability of statutory provisions are made for the avoidance of doubt only. Accordingly, even without such reference, the statutory provisions apply unless they are directly altered or expressly excluded in these GTCS.
II. Quotations, Orders, Deviations
1. Unless expressly provided for otherwise in our quotation, our quotations are generally non-binding until the order is confirmed by us. This also applies to any catalogues, technical documentation (e.g., references to DIN standards) or other product descriptions or documents (also in electronic format) provided to the Purchaser, in which we reserve any and all rights, in particular ownership and copyrights. If we do not accept the offer of the Purchaser within the period indicated in Clause II no. 2, such documents shall be returned to us promptly. Our quotations do not include VAT.
2. The Purchaser's order of the goods shall be deemed a binding contractual offer. Unless provided for otherwise in the order, we are entitled to accept this contractual offer within one (1) week following receipt thereof. The contract shall only be deemed entered into once the order has been confirmed in writing (text form is sufficient) or once the goods have been delivered.
3. We provide the information as regards the usability and suitability of our products to the best of our knowledge. Such provision of information constitutes neither a description of the quality of our products nor a representation or warranty. This also applies to any other public statements made by us, the manufacturers of the products delivered by us or their agents, in particular in advertising or on the product labels.
4. The target quality of our products is determined solely by the agreed specifications.
5. The customary deviations in quality, shape and color apply to any product to be delivered and to any raw materials used by us.
III. Delivery and Performance Period, Default of Delivery, Force Majeure
1. The delivery period will be agreed on a case-by-case basis or specified by us in writing when accepting the order. Clause II no. 2 above shall apply. Unless agreed otherwise in an individual case, the delivery period shall be between four (4) and six (6) weeks following conclusion of the contract or confirmation of the order. Unless expressly agreed otherwise in an individual case, agreed delivery periods are generally non-binding.
2. We are entitled to carry out partial deliveries and/or render partial performance.
3. Purchase orders and other orders for individual partial deliveries shall be placed in such a way that we are able to manufacture, package and deliver the product or products as contractually agreed.
4. If, in a particular case, we are unable to keep agreed delivery periods for reasons beyond our control, i.e., if we are unable to perform, we will inform the Purchaser promptly of this and indicate at the same time the expected new delivery period. If we are unable to perform also within the new delivery period, we are entitled to rescind the contract in whole or in part; any consideration already provided by the Purchaser will be reimbursed promptly. In particular, a delay in delivery to us from our suppliers shall be deemed an inability to perform for the purposes of this paragraph.
5. Any default of delivery on our part shall be determined in accordance with the statutory provisions. In any case, however, the Purchaser is required to send a reminder.
6. We are not liable for delays in delivery and performance due to force majeure. Events of force majeure entitle us to postpone the delivery for the duration of the impediment and a reasonable lead time or rescind the contract in whole or in part with respect to the part of the contract not performed yet. Strikes, lockouts, mobilization, war, blockades, import and export bans, epidemics/pandemics and other government intervention, whether such events affect us or our suppliers, shall be treated the same as events of force majeure. We shall inform the Purchaser promptly of any occurrence of an event of force majeure impeding any delivery to be made by us. If the impediment lasts for more than two (2) months, the Purchaser may, after having provided a reasonable grace period, rescind the contract with respect to the part of the contract not performed yet. In the case of contracts having a term of six (6) months or more, the obligations to perform shall be suspended for the duration of the impediment and extinguish if one of the contractual parties cannot be reasonably expected to perform them later. Any advance payments already made by the Purchaser in this respect will be reimbursed promptly.
7. In the event of contract work to be provided by us, we require that the primary materials/components of suitable quality be delivered to us carriage free in time. If these requirements are not met, we are entitled to extend the delivery period or rescind the contract and/or to claim damages. Our inspection upon reception of primary materials/components is limited to identity and quantity checks.
8. Further legal claims and remedies of the Purchaser on grounds of a default of delivery shall remain unaffected.
IV. Prices, Terms of Payment and Default of Payment
1. Unless agreed otherwise in a particular case, our current prices applicable at the time the contract is entered into apply. Our prices are net prices, i.e., plus the applicable VAT and any other applicable duties, taxes, fees and public levies.
2. The purchase price is due and payable within 14 days of invoice and delivery or acceptance of the goods. We are, however, entitled at any time, including under an ongoing business relationship, to make a delivery in whole or in part subject to prepayment. We will provide notice of such reservation at the latest in the order confirmation, without a special reminder being required.
3. Upon expiration of the above period allowed for payment, the Purchaser will be in default. During such default, the Purchaser shall pay interest on the purchase price at the applicable statutory default interest rate of currently 9 percentage points above the base rate. We reserve the right to assert any claims on grounds of further damage caused by default. In relation to merchants, our claim to commercial default interest (Sec. 353 German Commercial Code) shall remain unaffected.
4. Irrespective of any contrary terms and conditions of the Purchaser, we are entitled to set off payments first against the Purchaser's older liabilities. If costs and interest have already been incurred, we are entitled to set off payments first against the costs, then against the interest and last against the principal amount.
5. We are entitled to issue invoices in electronic form (by e-mail or as an e-mail attachment). If the Purchaser requests a hardcopy invoice, we are entitled to charge EUR 10 per invoice for expenses.
6. Any payment is only deemed to be made when the relevant amount is at our disposal. A payment made by check is only deemed to be made when the check has been honored. If payment by direct debiting has been agreed, any payment is only deemed to be made when the relevant amount is irrevocably at our disposal. Bills of exchange are permitted only with our consent. Bills of exchange will be accepted only on account of payment and subject to their eligibility for discounting.
7. If the Purchaser fails to meet its payment obligations, in particular if the Purchaser fails to honor a check, revokes a payment in an agreed direct debiting scheme or discontinues its payments, or if we learn of any other circumstances that raise doubts as to the Purchaser's credit standing, we are entitled to accelerate the maturity and demand immediate payment of the remaining debt, including if we have accepted checks.
8. If the Purchaser does not meet its payment obligations or does not meet them in time, we are entitled to refuse our performance in whole or in part until the amounts due have been paid or security has been provided. If the Purchaser is in default of payment, we also have the right to accelerate the maturity and demand immediate payment of all claims against the Purchaser.
9. If, after the contract has been entered into, it becomes apparent (e.g., because a petition for the opening of insolvency proceedings has been filed) that our claim to the purchase price is put at risk due to the Purchaser's inability to pay, we are entitled under the statutory provisions to refuse performance and – after having provided a grace period, where applicable – to rescind the contract (Sec. 321 German Civil Code). In the case of contracts for the production of specific items (custom-made products), we may give immediate notice of rescission; the statutory provisions as to where providing a grace period is not required shall remain unaffected.
IV. Assignment, Right of Set-off and Retention
1. Our claims may be set off only against counterclaims that are undisputed or have been allowed by a final and non-appealable decision. In the event of defects in the delivery, the rights of the Purchaser as set forth in Clause VII. hereof shall remain unaffected. Any right of retention arising from previous or other transactions of the ongoing business relationships cannot be exercised.
2. We are entitled to assign any and all claims against the Purchaser to a third party and in particular to any of our affiliates without requiring the Purchaser's consent.
V. Packaging, Shipping and Transport
1. The goods will be shipped either in disposable packaging, which will not be invoiced and the ownership in which will pass to the Purchaser, or in returnable packaging (V2A tanks, containers, boxes, reusable pallets, etc.).
The Purchaser shall dispose of any disposable packaging properly at its own expenses and agrees to do so even if we are required by law to accept the return of disposable packaging. At our request, the Purchaser shall provide us with appropriate proof of proper disposal.
Any returnable packaging shall be returned to us free of charge promptly after having been emptied without any residue and rinsed out in good order and clean condition.
2. In the event of damage, loss or destruction of individual items of returnable packaging, the Purchaser shall bear the full replacement costs.
3. Unless agreed otherwise, our deliveries will be made ex works, ex production site or ex warehouse (FCA Incoterms® 2020).
4. Unless a specific shipping method is expressly agreed with the Purchaser, we reserve the right to determine the shipping method. Shipping and transport will be at the Purchaser's expenses and risk.
5. Promptly after having received the delivery, the Purchaser shall inspect the goods for any transport damage or missing quantities and notify the Seller promptly in writing of any deficiency detected. The Purchaser shall provide the relevant certificates issued by the forwarding agent that prove the transport damage or missing quantities.
VI. Contracts
1. The contract volume and the contract duration are binding for us and the Purchaser.
2. Unless agreed otherwise in writing, orders under the contract volume shall always be made on a pro rata temporis basis per month, i.e., if the contract duration is twelve months, for example, one twelfth of the contract quantity shall be ordered per calendar month, provided that the minimum quantity stipulated in the contract is adhered to.
3. Orders shall always be made in writing (text form).
4. Unless lead times for the delivery of the goods have been agreed in writing, the lead times shall be determined on the basis of the nature of the goods and our operational and planning requirements.
5. We may refuse the execution of individual orders if and as long as the Purchaser is in default of payment to the relevant Seller or any other company of DöhlerGroup.
6. Upon expiration of the contract duration, the Seller will be released from its obligation to perform even if the Purchaser has not ordered the contract volume at all, in full and/or in time. Any further delivery after expiration of the contract will be made on a non-binding basis and shall not be construed as a tacit extension of the contract duration.
7. The foregoing shall not affect our right to request upon expiration of the contract from the Purchaser to purchase within a reasonable grace period any contract quantities that have not been ordered or not been ordered in full. If the Purchaser does not order the quantities remaining under the contract within the grace period provided, the Seller may claim, in addition to asserting its claim to performance, damages for non-performance. Any delay or failure in making a request for purchase by the Seller does not release the Purchaser from its contractual obligation to perform the contract by purchasing the agreed quantities or pay damages for non-performance.
8. Our liability and the liability of our vicarious agents for the timely availability of the ordered contract goods shall be limited to liability for willful intent and gross negligence. We shall not be liable if the non-performance or late performance is due to grounds that are not connected to the nature of the obligation as an indeterminate obligation or cannot be attributed to the sphere of the Seller or its vicarious agents. In addition to events of force majeure, this applies also if the Seller or its vicarious agents cannot be reasonably expected to procure the goods due to impediments to performance caused by circumstances that are unforeseeable or beyond the control of the Seller or its vicarious agents, e.g., in the event of a blockade or lockout of a production and/or processing site.
9. If a legal provision enters into force after the conclusion of the contract resulting in an increase in import charges applicable to the agreed delivery period or parts thereof and this results in an increase in our verifiable expenses, the purchase price shall be adjusted for the relevant increase in expenses. For the purposes of this provision, import charges shall include customs duties, levies and excise duties.
VII. Notices of Defect and Warranties
1. The rights of the Purchaser in the event of defects as to quality and title shall be governed by the statutory provisions, unless provided for otherwise below.
2. Any warranty rights of the Purchaser apply only if the Purchaser has properly complied with its inspection and defect notification duties owed under Sec. 377 German Commercial Code. If a defect is detected upon delivery, during the inspection or at any later time, the Purchaser shall notify us thereof promptly in writing. In any case, obvious defects shall be notified in writing within three (3) workdays following receipt of the goods. Hidden defects, i.e., defects that cannot be detected in the inspection, shall be notified within three (3) workdays following detection. If the Purchaser fails to conduct a proper inspection and/or to notify the defects, our liability for any defect not notified at all or not notified timely or properly shall be excluded pursuant to the statutory provisions.
3. Any claim on grounds of defects shall become time-barred within twelve (12) months after the goods delivered by us have been delivered to the Purchaser, however, no later than upon expiration of the best-before date or period specified on the goods. Claims for damages caused by willful intent or gross negligence or for injury to life, body or health caused by an intentional or grossly negligent breach of duties committed by the Seller or its vicarious agents shall become time-barred as provided for by law. Any return of the goods shall require our prior consent.
4. Any notice of defect shall be accompanied by samples of the rejected goods.
5. If, despite all due care exercised, the goods delivered by us have any defect that had already been present when the risk passed, we will remedy the defect by rectification or supply of a replacement at our option, provided that a notice of defect has been provided in time. We shall always be given the opportunity to remedy the defect within a reasonable grace period. Our right to refuse to remedy the defect, where available under the applicable legal provisions, shall remain unaffected.
6. We will reimburse any expenses required in connection with the inspection and remediation, in particular transport costs, travel expenses, labor costs and cost of supplies, as provided for by law if there is actually a defect. Otherwise, we may request the Purchaser to reimburse any expenses resulting from the unjustified request to remedy a defect (in particular inspection and transport costs), unless it was not possible for the Purchaser to recognize the lack of defect. Any claims of the Purchaser with respect to the expenses required in connection with the remediation, in particular transport costs, travel expenses, labor costs and cost of supplies, shall be excluded to the extent that the expenses are increased because the goods delivered by us have been transported afterwards to a location other than the Purchaser's location, unless such transportation is in line with the intended use of such product.
7. If the remediation fails, is impossible or is seriously and finally refused by us, or if the Purchaser cannot be reasonably expected to accept the remediation, or if a grace period to be provided by the Purchaser for remediation expires without the defect having been remedied, or the Purchaser is not required by law to provide a grace period for remediation, the Purchaser is entitled, at its option, to reduce the purchase price (reduction) or rescind the contract (rescission). Upon the notice of rescission or the request for reduction having been made, the Purchaser's claim to delivery of a product free from defects shall extinguish.
8. Any claims of the Purchaser for damages or compensation for wasted expenditure are available in the event of defects only as provided for in Clause VIII. and shall be excluded otherwise.
9. The Purchaser may not derive any rights from defects that do not or only immaterially affect the value or the suitability of the goods for the intended use as recognizable by us.
10. The best-before dates specified by us are not use-by dates.
11. We may confirm the quality and thus the suitability of our products for the used intended by the Purchaser only if the Purchaser provides us in advance with detailed information in writing about the manner of the processing and use and guarantees that such manner will be adhered to. Such a confirmation by us constitutes a warranty and assumption of liability only if we expressly provide such warranty in writing.
12. To the extent we provide mandatory instructions for use and storage, the Purchaser shall be responsible for any adverse effects resulting from non-compliance with such instructions.
VIII. Other Liability
1. Unless provided for otherwise in these GTCS including the below provisions, we will be liable for any breach of contractual or non-contractual duties as provided for by law.
2. We are liable for damages – on whatever legal basis – in connection with fault-based liability for willful intent and gross negligence. We are liable for ordinary negligence, subject to statutory limitations of liability (e.g., care exercised in own affairs; immaterial breach of duty), only
a. for damage due to injury to life, body or health
b. for damage resulting from the breach of a material contractual duty (an obligation the fulfillment of which is indispensable for proper performance of the contract and on the fulfillment of which the other party typically relies and may rely); in such cases, however, our liability shall be limited to the foreseeable damage typically sustained.
3. The limitations of liability resulting from no. 2 above shall apply also to breaches of duty committed by or in favor of individuals the fault of which is attributable to us pursuant to statutory provisions. They do not apply to the extent we fraudulently conceal any defect or have provided a warranty for the quality of the goods and to claims of the Purchaser under the German Product Liability Act.
4. The Purchaser may rescind or terminate the contact on grounds of a breach of duty that does not constitute a defect only if the breach of duty is attributable to us. Any right of termination for convenience of the Purchaser shall be excluded. Otherwise, the statutory requirements and legal consequences shall apply.
5. If the product delivered by us is a trading good that we have purchased from an upstream supplier and resold to the Purchaser, we have the right to assign to the Purchaser any rights based on defects as to quality we may have against the upstream supplier and request from the Purchaser to have recourse against the upstream supplier. We are liable for defects of such trading goods only if claims against the upstream supplier cannot be enforced although they have been asserted in time and, where applicable, in court.
6. We are not liable for any recommendation, advice or sharing of know-how, except in the event of willful intent or gross negligence.
7. The Purchaser shall reimburse us for all fees, costs and expenses incurred by us in any legally successful enforcement of rights against the Purchaser.
IX. Retention of Title
1. Title to the sold goods shall remain vested in us until all our current and future claims under the sale and purchase agreement and an ongoing business relationship (secured claims) have been paid in full. The inclusion of individual claims in an ongoing invoice and any set-off and recognition thereof shall not affect the retention of title. Payment shall be deemed effected upon receipt of the consideration by us.
2. The Purchaser is entitled to resell the conditional goods in the ordinary course of business. The conditional goods may not be pledged or transferred for security purposes to third parties until the secured claims have been paid in full. The Purchaser shall notify us promptly in writing if a petition for the opening of insolvency proceedings is filed or third parties have recourse (e.g., attachments) to the goods belonging to us. Any costs of intervention shall be borne by the Purchaser. The Purchaser shall secure our rights when reselling conditional goods on credit.
3. The Purchaser shall treat the conditional goods with care and store them properly. In particular, the Purchaser shall, at its own expense, insure the conditional goods for replacement value sufficiently against damage caused by fire and water and against theft. The Purchaser hereby assigns to us any claim it may have under the aforementioned insurance policies to the extent the conditional goods are insured; we hereby accept such assignment.
4. The Purchaser hereby assigns to us any claims it may have under the resale of the conditional goods; we hereby accept such assignment. Irrespective of such assignment and our right to collection, the Purchaser is entitled to collection as long as the Purchaser meets its obligations owed to us and does not become illiquid.
5. To the extent the Purchaser refinances on a factoring basis, the Purchaser hereby assigns any claims it may have against the factor under such refinancing in the amount of the Purchaser's outstanding balance under the business relationship with us; we hereby accept such assignment.
6. If the conditional goods are resold together with other goods, whether without or after processing, combining, mixing or blending, the above assignment in advance applies only in the amount of the invoice value of the conditional goods that are resold together with other goods. At our request, the Purchaser shall provide us with the information about the assigned claims required for collection purposes and disclose the assignment to the debtors.
7. If the Purchaser performs any processing or finishing of the conditional goods on our behalf, this shall not give rise to any obligations for us. In the event of processing, combining, mixing or blending of the conditional goods with other goods we do not own, we are entitled to the resulting co-ownership share in the new product in the proportion of the invoice value of the conditional goods to the other processed goods applicable at the time of the processing, combining, mixing or blending. If the Purchaser acquires sole ownership in the new product, the contractual parties agree that the Purchaser shall grant us co-ownership in the new product in the proportion of the invoice value of the processed, combined, mixed or blended conditional goods and shall keep the new product safe for us free of charge.
8. If the Purchaser is in breach of contract, in particular in default of payment, we are entitled to rescind the contract pursuant to the statutory provisions and demand that the conditional goods be returned. Such demand for return does not constitute at the same time a notice of rescission but only a demand for the goods to be returned and a notice of reservation of our right to rescind. If the Purchaser fails to pay the purchase price when due, we may exercise these rights only after we have provided the Purchaser with a reasonable grace period for payment and such grace period has expired without the purchase price having been paid, unless it is not required by law to provide such a grace period.
9. We agree to release the security to which we are entitled pursuant to the above provision at the Purchaser's request to the extent the value exceeds the claims to be secured by more than 20%.
X. Governing Law and Place of Jurisdiction
1. These GTCS and all contractual relationships between us and the Purchaser shall be governed by the law of Germany, without regard to the applicable conflict of law rules and any international and supranational law (treaties), in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. Place of performance and exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly out of the contractual relationship is the location of the Seller's registered office. Notwithstanding the foregoing, we may sue the Purchaser also in courts normally having jurisdiction over the Purchaser.
XI. Miscellaneous
1. To the extent permitted by applicable law, in particular under data protection law, we will store and process data and information which is disclosed to us or of which we learn in connection with the cooperation. The Purchaser hereby agrees with and consents to the sharing of such data and information with our affiliates.
2. To the extent the use of our products is subject to special legal requirements, the Purchaser is responsible for complying with such requirements and for verifying whether our products are suitable for the specific use intended.
3. The products delivered by us may not be reverse engineered. In particular, they may not be reverse engineered with the aim of determining the chemical composition or product design. Any transfer of our products to third parties with the aim of copying our products or developing generic products that are as similar as possible to our products is strictly prohibited.
4. If any provision of these GTCS is or becomes invalid, this shall not affect the validity of the remainder hereof. The invalid or unenforceable provision shall be replaced by such valid and enforceable provision which comes closest to the economic effect intended by the Parties for the invalid or unenforceable provision. The above applies accordingly to any gaps contained herein.
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