General Terms and Conditions

§ 1 Scope

a) These terms of sale and delivery apply to all – including future – business relationships with entrepreneurs within the meaning of Sec. 14 German Civil Code (BGB), legal entities under public law, or special funds under public law, relating to deliveries and other services, including contracts for work and services and the delivery of non-fungible goods.

b) Our terms of sale and delivery apply exclusively. We hereby object, now and in the future, to any other terms – in particular the buyer's purchasing terms.

c) If, in an individual case, deviating agreements are to be made with the buyer that shall take precedence over these general terms of sale and delivery, this requires a contract or our explicit confirmation in text form in each case. Any waiver of this text-form requirement likewise requires text form.

§ 2 Offer and Acceptance

a) Our offers are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. Orders become binding for us only when and insofar as we have confirmed them in text form or commenced performance. Oral agreements, assurances and guarantees made by our employees – excluding corporate bodies, authorized signatories and general agents – in connection with the conclusion of the contract become binding only upon our confirmation in text form. Any waiver of this text-form requirement also requires text form.

b) Additional clauses relating to product designation such as "approx.", "as previously delivered", "as usual" or similar additions in our offers refer exclusively to the quality or quantity of the goods, but not to the price. Such statements in the buyer's orders are understood accordingly by us.

c) Our quantity specifications are approximate. For deliveries in demountable tanks or permanently connected tanks as well as in silo vehicles, deviations of +/- 10% of the agreed quantity are deemed in conformity with the contract; indications of an approximate quantity entitle us to a corresponding over-/under-delivery. Such deviations reduce or increase the agreed purchase price accordingly.

§ 3 Purchase Price and Payment

a) Our prices are plus statutory VAT, packaging and, in the case of export deliveries, plus customs duties as well as fees and other public charges, taking into account the respective place of delivery. Prices are calculated on the basis of the quantities or weights determined by us or our upstream supplier, unless the recipient determines them using calibrated scales and the goods were transported at our risk; in that case, the recipient's determination is decisive for price calculation.

b) The purchase price is due net cash upon delivery of the goods unless otherwise agreed in text form.

c) If the due date is exceeded, we may charge interest at a rate of 5 percentage points.

d) In the event of default, we charge default interest at 9 percentage points above the base rate and, in addition, a flat-rate fee of EUR 40.00. We reserve the right to assert further damages.

e) Bills of exchange and checks are accepted only on account of performance and only if agreed accordingly. Bank charges customary in payment transactions are borne by the buyer.

f) The buyer is entitled to rights of retention and set-off only insofar as its counterclaims are undisputed or have been finally adjudicated, arise from the same contractual relationship with us, or would entitle the buyer to refuse performance pursuant to Sec. 320 BGB.

g) If, after conclusion of the contract, it becomes apparent that our claim to payment is endangered by the buyer's lack of ability to perform, or other circumstances arise indicating a material deterioration in the buyer's ability to perform, we may exercise the rights under Sec. 321 BGB. This also applies if our obligation to perform is not yet due. In such cases, we may also declare all non-time-barred claims arising from the ongoing business relationship with the buyer due. The buyer is also deemed to lack ability to perform if the buyer is in payment default with a substantial amount for at least three weeks, or if the credit limit existing for the buyer with our trade credit insurer is substantially reduced.

§ 4 Delivery, Delay and Impossibility

a) Agreed delivery periods and dates are always deemed approximate unless a fixed date has expressly been agreed as such in text form. In the event of our delay in delivery, the limitation of liability in § 9 applies.

b) We are entitled to make partial deliveries to a reasonable extent. We are also entitled to reasonably over- or under-deliver the agreed quantities within the meaning of § 2(c).

c) In the case of deliveries that do not affect our operations (drop shipments), the delivery date and period are deemed met if the goods leave the shipping point in time such that, with normal transport time, the delivery reaches the recipient on time.

d) We are not liable for impossibility of delivery or delivery delays insofar as these are caused by force majeure or other events that were not foreseeable at the time of contract conclusion (e.g., operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, epidemics affecting our supply chain, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures) for which we are not responsible. If such events substantially impede or make impossible our delivery or performance and the impediment is not merely temporary, we are entitled to withdraw from the contract. In the case of temporary impediments, delivery or performance periods shall be extended or delivery or performance dates postponed by the duration of the impediment plus a reasonable start-up period. If acceptance of the delivery or performance is unreasonable for the buyer due to the delay, the buyer may withdraw from the contract by immediate declaration in text form to us.

e) We are not liable for impossibility or delay in fulfilling delivery obligations if and insofar as the impossibility or delay is based on circumstances caused by the buyer, in particular if the buyer fails to comply with its public-law obligations, e.g., in connection with EU Regulation (EC) No. 1907/2006 (REACH Regulation) or other mandatory legal obligations to provide an end-use declaration in the version applicable at the time.

f) Our delivery obligation is subject to correct and timely self-supply unless the incorrect or delayed supply is attributable to our fault.

§ 5 Dispatch and Acceptance

a) Delivery shall be made in accordance with the trade clause agreed in the individual contract, which shall be interpreted using the INCOTERMS in the version valid at the time the contract is concluded. Unless otherwise agreed, our deliveries are Ex Works. Transport risks from the delivery point are always borne by the buyer, even in the case of carriage-paid deliveries or deliveries free domicile.

b) If the buyer collects the goods at the delivery point, the buyer or its agent must load the vehicle and observe the statutory provisions, in particular with regard to the transport of dangerous goods.

c) Unloading and storage of the goods is in all cases the responsibility of the buyer.

d) In the case of deliveries in tank vehicles and demountable tanks, the buyer must ensure that its tanks or other storage containers are in perfect technical condition and must connect the filling lines to its receiving system at its own responsibility and, where applicable, obligate the recipient accordingly. Our obligation is limited to operating the vehicle's own equipment.

e) If our employees assist in unloading or decanting in the cases of subsections b) to d), they act solely at the buyer's risk and not as our vicarious agents. Costs arising from standing and waiting times are borne by the buyer.

f) Storage costs after the transfer of risk as well as in the event of acceptance delay are borne by the buyer. After expiry of a reasonable period set to the buyer without success for acceptance, we may dispose of the goods at the buyer's expense if, in our reasonable discretion, storage of the goods is not feasible or reasonable due to their nature or condition, insofar as further use or resale is not possible.

§ 6 Packaging

a) If we deliver in returnable packaging, the buyer must return it at the buyer's expense and risk to us within 30 days after arrival, empty and in perfect condition, or return it to our vehicle free of charge against a receipt. The rules of the "Pfandgeld-Gemeinschaft des Chemiehandels" for reusable chemical packaging remain unaffected.

b) If the buyer fails to comply with the obligation under a) in due time, we are entitled to charge an appropriate fee for the period exceeding 30 days and, after an unsuccessful grace period to return, demand the replacement price, offsetting the aforementioned fee.

c) Labels affixed to packaging must not be removed. Returnable packaging must neither be exchanged nor refilled. The buyer bears the risk of depreciation, exchange and loss. The condition upon receipt at our premises is decisive. Use of returnable packaging as a storage container or its transfer to third parties is not permitted unless previously agreed in text form.

d) The buyer must, at its own responsibility, unload tank wagons without delay and return them to us or the address specified in proper condition. If the buyer is in delay with the return, delay-related costs of the tank wagon are borne by the buyer.

§ 7 Retention of Title

a) Ownership of the goods (reserved goods) shall pass to the buyer only upon full payment of the purchase price. All delivered goods remain our property (reserved goods) until all claims, in particular any respective balance claim, arising from the business relationship have been satisfied (balance retention of title). This also applies if payments are made on specifically designated claims. The balance retention of title finally expires upon settlement of all claims still outstanding at the time of payment and covered by this balance retention of title. In the case of advance payment or cash transactions within the meaning of Sec. 142 Insolvency Code, only the simple retention of title pursuant to sentence 1 applies; the balance retention of title does not apply in that case.

b) As long as the buyer properly fulfills its obligations toward us, it is entitled to use the reserved goods in the ordinary course of business, provided that its claims from resale are transferred to us pursuant to e).

c) If the buyer fails to meet its payment obligations even after a grace period, we are entitled to demand surrender of the reserved goods without any further grace period and without a declaration of withdrawal. For the purpose of repossession, we may enter the buyer's premises if necessary.

d) Any processing of the reserved goods is carried out for us without obligating us. We are deemed to be the manufacturer within the meaning of Sec. 950 BGB and acquire ownership of the intermediate and final products in proportion to the invoice value of our reserved goods to the invoice values of third-party goods; the buyer stores them for us in a fiduciary capacity and free of charge. The same applies in the case of combination or mixing of reserved goods with third-party goods within the meaning of Secs. 947, 948 BGB.

e) The buyer hereby assigns to us, as security for all our claims, the claims against third parties arising from resale of the reserved goods. If the buyer sells goods in which we have partial ownership pursuant to d), the buyer assigns to us the claims against third parties in the corresponding partial amount. If the buyer uses the reserved goods within the scope of a contract for work or a similar contract, it assigns the corresponding claim to us.

f) In the ordinary course of business, the buyer is authorized to collect the claims arising from further use of the reserved goods. If we become aware of facts indicating a material deterioration in the buyer's financial situation, the buyer must, at our request, notify its customers of the assignment, refrain from any disposition of the claims, provide all necessary information about the stock of goods in our ownership and the claims assigned to us, and hand over the documents required to assert the assigned claims. Access by third parties to the reserved goods and the assigned claims must be reported to us without undue delay.

g) If the value of the securities to which we are entitled exceeds the total claim against the buyer by more than 50%, we shall, at the buyer's request, release securities of our choice to that extent.

§ 8 Liability for Defects

a) The internal and external properties of the goods owed are determined by the agreed specifications; in the absence of such specifications, by our product descriptions, labels and specifications; in the absence of these, by customary practice and trade usage. References to standards and similar rules, information in safety data sheets, information on the usability of the goods and statements in advertising materials, declarations of conformity, certificates of analysis, inspection certificates or similar declarations do not constitute assurances or guarantees. In particular, uses identified under the REACH Regulation (EC) No. 1907/2006 do not constitute an agreement on corresponding contractual quality nor a use presumed under the contract.

b) If we advise the buyer verbally, in writing or through tests, this is done to the best of our knowledge but without liability on our part and does not release the buyer from its own examination of the delivered goods for suitability for the intended processes and purposes.

c) For inspection of the goods and notification of defects, the statutory provisions apply, e.g., Sec. 377 German Commercial Code (HGB), with the proviso that the buyer must notify us of defects in text form. If goods are delivered in shipping units, the buyer must additionally check the labeling of each individual shipping unit for conformity with the order. Furthermore, before decanting, the buyer must verify the contractual quality of the goods by sampling in accordance with customary trade practice.

d) In the case of a justified and timely notice of defects, we may, at our discretion, remedy the defect or deliver defect-free goods (subsequent performance). If subsequent performance fails or is refused, the buyer is entitled to the statutory rights. If the defect is not material and/or the goods have already been resold, processed or transformed, the buyer is only entitled to a reduction in price.

e) Further claims, in particular consequential damages, are excluded in accordance with § 9.

§ 9 General Limitation of Liability and Limitation Period

a) For breaches of contractual and non-contractual duties, in particular due to impossibility, delay, culpa in contrahendo and tort, we – including our executive employees and other vicarious agents – are liable only in cases of intent and gross negligence. Where there is no intent, our liability for damages is limited to the foreseeable, typical damage at the time of contract conclusion. Otherwise, our liability, including for consequential damages and loss of profit, is excluded.

b) The limitations under § 9(a) do not apply in cases of intent or culpable breach of essential contractual obligations. Essential contractual obligations are the duty to deliver on time and to provide goods free from defects that impair their functionality or usability more than insignificantly, as well as advisory, protective and custodial duties intended to protect the buyer or its personnel from significant damage. The limitations also do not apply in cases of mandatory liability, e.g., under the Product Liability Act, in the event of injury to life, body or health, or if and insofar as we fraudulently concealed defects or guaranteed their absence. The rules on the burden of proof remain unaffected. The buyer's rights of recourse under Secs. 478, 479 BGB remain unaffected in any event.

c) If we are in delay with a delivery or other performance, the buyer may claim compensation for delay in addition to performance; in cases of slight negligence, however, limited to a maximum of 10% of the agreed price for the performance in delay. The buyer's right to damages in lieu of performance under this § 9 remains unaffected.

d) For liability in cases of impossibility of delivery or delivery delays, the limitations under § 4(d) and § 4(e) apply.

e) Unless otherwise agreed, contractual claims arising for the buyer against us in connection with the delivery of goods and our other services shall become time-barred one year after delivery of the goods. This does not affect statutory limitation periods for our liability for intentional and grossly negligent breaches of duty, culpably caused injury to life, body or health, and mandatory liability, e.g., under the Product Liability Act.

§ 10 REACH

If the buyer informs us of a use pursuant to Article 37(2) of Regulation (EC) No. 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH Regulation) that requires an update of the registration or the chemical safety report or triggers any other obligation under the REACH Regulation, the buyer shall bear all verifiable expenses. We are not liable for delivery delays caused by the notification of such use and our fulfillment of the corresponding obligations under the REACH Regulation. If it is not possible, for reasons of health or environmental protection, to include this use as an identified use and the buyer, contrary to our advice, intends to use the goods in the manner we advised against, we may withdraw from the contract. The buyer cannot derive any rights against us from the above rules.

§ 11 Place of Jurisdiction, Applicable Law, Severability

a) The exclusive place of jurisdiction for all disputes arising from the business relationship between us and the buyer is the place of our principal branch office. However, we may also sue the buyer at its place of business. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected.

b) The law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980, as amended.

c) Should any of the above clauses be or become invalid, such invalid provisions shall be replaced by provisions that come closest to the economic purpose of the contract while appropriately safeguarding the interests of both parties.