General Delivery Conditions of Chemische Fabrik Lehrte

§ 1 Scope, divergent conditions
  1. The following General Delivery Conditions apply to all deliveries, services and offers made by Chemische Fabrik Lehrte, (hereinafter referred to as CFL). By entering into this agreement the Purchaser acknowledges these to be the only valid delivery conditions. The conditions set forth below apply to all business relations between CFL and the Purchaser even if their applicability is not elsewhere expressly agreed. Other contradictory or different conditions of the Purchaser are not part of this Agreement, even if CFL has not expressly revoked them and unreservedly executes deliveries to the Purchaser in the knowledge of contradictory conditions of the Purchaser.
  2. Any changes or additions to the delivery conditions set forth below, including this clause, require the written agreement of the two parties to this agreement in order for them to be effective.
§ 2 Prices
  1. Payment owed by the Purchaser for the ordered goods is calculated based on the price of the ordered goods in effect on the day of delivery in EURO plus the value added tax applicable in Germany at the rate in effect on the invoice date.
§ 3 Ordering
  1. Offers from CFL are non-binding.
  2. Orders from the Purchaser that are placed orally or by data telecommunication only become legally binding when CFL has confirmed such orders in writing and the purchaser has not immediately objected to the letter of confirmation issued by CFL. The letter of confirmation from CFL legally defines the substance of the contractual relationship and the scope of delivery.
§ 4 Delivery
  1. The obligation of CFL to deliver the ordered goods is under the proviso of self-delivery from CFL. CFL will inform the Purchaser immediately if a self-delivery does not occur. If a self-delivery from CFL does not occur, CFL is entitled to withdraw from the agreement. Any considerations rendered by the Purchaser will be allowed for in the event of withdrawal from the agreement.
  2. Part-deliveries are permissible and may be invoiced immediately by CFL.
  3. Delivery times quoted by CFL in offers and orders are non-binding.
  4. If however binding delivery dates have been agreed between CFL and the Purchaser, then the following applies:
    In the event of force majeure, labour dispute, fire, failure of machinery or other circumstances that are outside the responsibility of CFL, the agreed delivery period is extended to cover the duration of these events.
    If prevention of performance as a result of the aforementioned events lasts more than 2 months, then both the Purchaser and CFL are entitled to withdraw from the agreement in respect of the non-performance. Before this period has expired withdrawal as a result of the aforementioned delaying circumstances is excluded for both parties. Precondition for adhering to an agreed delivery date is the timely fulfilment of the contractual obligations taken on by the Purchaser, especially performance of the agreed payments and, where appropriate, furnishing of agreed securities. The claim of no fulfilment of the agreement remains reserved.
  5. Information provided by CFL with regard to package size or package type is non-binding. CFL chooses the packaging and means of transport to suit the particular requirements. Transport packaging and all other packaging in accordance with the FRG packaging Ordinance is non-returnable.
  6. If dispatch of the ordered goods is required, then this occurs from the respective warehouse of CFL at the expense and risk of the Purchaser. CFL is free to choose the transport company and means of transport. The risk of the goods to be delivered being accidentally ruined transfers from CFL to the Purchaser as from the time they leave the warehouse, even when delivery is free of charge.
  7. If dispatch ot the ordered goods is delayed by circumstances that are the responsibility of the Purchaser, the risk of accidental ruin of the goods to be delivered passes to the Purchaser at the time of placement into storage by CFL. If the goods to be delivered are accidentally damaged during default in acceptance by the Purchaser, CFL is relieved of his obligation to perform. The associated obligation to perform of the Purchaser remains in full.
    The costs arising through delay in delivery from CFL (in particular storage, expenses) shall be borne by the Purchaser alone in the event of default in acceptance.
  8. CFL is not obliged to insure the ordered goods, nor to have them insured, against transport damage.
§ 5 Information relating to purity and suitability
  1. The Purchaser must check for himself whether the ordered goods are suitable for his intended purposes. Products delivered by CFL meet the specifications. The specification relates only to the materials and values stated and to the declaration of pharmacopeias and E-numbers. Statements about suitability relate solely to the character of the products as provided in the contract. The values stated are based on the testing instructions of CFL. It is the sole responsibility of the purchaser to observe the pharmacopeial requirements, GMP guidelines, relevant laws, ordinances and other regulations in the manufacture of pharmaceutical, cosmetic or food products.
  2. CFL does not accept any liability for the usability of the delivered products in pharmaceutical, cosmetic and food products except where CFL has promised their usability following testing.
§ 6 Complaints, warranty and liability
  1. The Purchaser is obliged to examine the goods delivered by CFL immediately after delivery and to report any defects and any differences between the delivered goods and the ordered goods immediately in writing to CFL, at the latest within 30 days of receipt of the goods.
    Defects in the goods that despite immediate proper examination by the Purchaser are only discovered later must be reported by the Purchaser to CFL in writing immediately after they are discovered, at the latest however after one year following receipt of the goods.
    Complaints made to hauliers or third parties are not complaints in the proper form and are invalid.
  2. Defects asserted by the Purchaser contrary to the aforementioned duty of examination and complaint are excluded from the warranty.
  3. The existence of a defect that has been identified as such and notified by means of effective complaint establishes the following rights of the Purchaser:
    1. Where there is a defect of quality or title CFL is entitled to choose between removing the defect or delivering a defect-free item.
      The Purchaser does not have a claim to a particular type of remedy. If the purchase price is entirely or partially unpaid, CFL can make the remedy dependent on the Purchaser paying a part of the purchase price that is reasonable in due consideration of the defect being claimed.
    2. Only if the remedy is also unsuccessful is the Purchaser entitled to withdraw from the agreement or to reduce the purchase price to a reasonable extent.
    3. The Purchaser is entitled to choose between a reduction in purchase price or withdrawal from the agreement and to demand compensation instead of fulfilment as provided for in § 7 if CFL refuses earnestly and finally to provide a remedy, according to § 6, section 3, or if the remedy chosen by CFL has failed or is unacceptable for the Purchaser or the Purchaser has set a reasonable time – without success – for the remedy to be provided. The remedy is deemed to have failed following the second unsuccessful attempt if nothing else emerges from the nature of the matter or of the defect or of the other circumstances.
      For the event that rectification or replacement delivery ensues as a result of a justified complaint the provisions governing delivery time under § 4 apply accordingly.
§ 7 Compensation
  1. CFL is not liable for damages that are not the result of a wilful or negligent act or breach of duty of its legal representatives, employees or agents; this applies also to the existence of defects in an item specified only by category.
  2. Claims for compensation against CFL are excluded – irrespective of the reason in law, especially because of violation of duties ensuing from the obligation and because of unpermitted acts – subject to the following arrangements:
    1. CFL is liable according to the legal provisions of the German Code of Civil Law (BGB) for damages arising through harms to life, limb or health due to wilful or negligent breach of duty by one or more of its legal representatives, employees or agents; also for any other damages arising through wilful or negligent breach of duty by one or more of its legal representatives, employees or agents.
    2. CFL owes compensation as determined by the provisions of the German Code of Civil Law (BGB) or reimbursement of expenses sustained by the customer if damage is caused by violation of a guarantee given by CFL with regard to the nature of the purchased item or if one or more of the legal representatives, employees or agents of CFL has negligently violated an obligation that is of material importance for achieving the contractual intent.
    3. CFL is similarly liable if one or more of its legal representatives, employees or agents has negligently violated a duty of care with regard to the rights, legal property and interests of the customer and fulfilment by CFL is no longer feasible to the Purchaser.
    4. In the cases stated in § 7 sections (b) and (c) the value of the claim for damages by the Purchaser is limited to damages that are foreseeable and typical with regard to the agreement entered into. At all events compensation for consequential damage such as loss of earnings is excluded.
    5. In the case of late delivery by CFL the Purchaser is only entitled to make compensation claims when a delivery period of at least 4 weeks set by him when non-delivery has started has expired without effect and the delayed delivery is the fault of CFL.
      The compensation claim by the Purchaser in the case of late delivery that is the fault of CFL is limited to compensation for financial losses to a value of damages that are foreseeable and typical with regard to the agreement entered into. Any other compensation claims by the Purchaser for late delivery or claims for compensation instead of fulfilment are excluded.
  3. A change in the burden of proof to the detriment of the Purchaser is not linked to the aforementioned provisions.
  4. A disclaimer of liability does not apply to claims of the Purchaser according to the German product liability law (Produkthaftungsgesetz).
§ 8 Purchaser’s duty to warn
  1. The Purchaser is obliged to warn CFL of any particular risks known to him that arise through use of the delivered goods
§ 9 Terms of payment
  1. The purchase price is payable without deduction within 30 days of the invoice date and is to be paid by the Purchaser.
  2. Withholding of payment or offsetting against existing counterclaims of the Purchaser is ruled out except for uncontested or legally established claims.
  3. All claims of CFL against the Purchaser from whatever legal relationship are immediately due for payment if a situation exists which, according to the legal provisions of BGB or the provisions of the contract, would entitle CFL to withdraw from the contract.
§ 10 Force majeure
  1. Neither party to the contract is responsible for no fulfilment of its contractual duties when the no fulfilment is due to a circumstance outside its control or in particular to one of the following causes:
    • fire
    • natural catastrophes
    • war
    • confiscation
    • general shortage of raw materials
    • limitation of energy consumption
    • labour disputes
    • or when breaches of contract by suppliers are due to one of these causes.
    This provision applies to all contractual duties including compensation duties.
  2. Either party may rescind the contract by giving written notice if its execution is prevented in accordance with § 10 Item 1 for more than six months.
§ 11 Retention of title
  1. All goods delivered by CFL remain its property until payment of the purchase price has been made in full and all claims resulting from the commercial relationship have been settled (extended retention of title).
    A disposition of whatever nature by the Purchaser over the goods for which title is retained is only permitted in the regular business dealings of the Purchaser. Under no circumstances may the goods be assigned to third parties as security in the course of business dealings.
  2. In the event of sale of the goods in regular business dealings the paid purchase price takes the place of the goods. The Purchaser already now assigns to CFL all claims arising from any sale. The Purchaser is empowered to collect these claims for as long as it takes to fulfil all his payment commitments to CFL. With due regard to the extended retention of title (advance assignment of the respective claim for the purchase price) any assignment to a third person, and in particular a credit institute, is not permitted. CFL is entitled at any time to request that the Purchaser’s sales paperwork be handed over, to check these and also to inform his purchasers of the assignment.
  3. If the claims of the Purchaser from the further sale are placed in an open account, the Purchaser herewith assigns his claims from the open account to the Supplier. The assignment occurs in an amount which the Supplier charged to the Purchaser for the goods for which title is retained and which have been sold on.
  4. In the event of any attachment of a claim on the Purchaser, the Supplier must be informed immediately through dispatch of a copy of the legal enforcement order and a declaration under oath that the goods to which the claim has been attached are the goods that were delivered by the Supplier and for which title is retained.
  5. If the value of the sureties as per the preceding paragraphs exceeds the value of the privileged and still unsettled claims for the foreseeable future by more than 20 %, the Purchaser is entitled to require the Supplier to release sureties’ equivalent to the part exceeding the value of the claims.
  6. The assertion of the rights of the Supplier from retention of title does not release the Purchaser from his contractual obligations. The value of the goods at the time of their being taken back is simply credited against CFL’s claim against the Purchaser.
§ 12 Right of withdrawal
  1. CFL is entitled to withdraw from the agreement for the following reasons:
    1. If it turns out that, contrary to the assumption when the agreement is concluded, the Purchaser is uncreditworthy. Credit unworthiness can be assumed implicitly in the event of a bill or a cheque not being honoured, of cessation of payment by the Purchaser or of an unsuccessful enforcement attempt on the Purchaser. It is not necessary for these to be relationships between the Supplier and the Purchaser.
    2. If it turns out that the Purchaser has made inaccurate statements about his credit worthiness and these statements are of substantial significance,
    3. If the goods for which title of the Supplier is retained are disposed of other than in the normal commercial dealings of the Purchaser, especially through assignment as security or hypothecation. Exceptions to this exist only insofar as the Supplier has consented in writing to such disposal,
    4. If CFL has a legal right of withdrawal according to the provisions of the German Code of Civil Law (BGB).
§ 13 Place of fulfilment and legal venue
  1. Where the Purchaser is a company or a corporate body under public law or a special fund under public law, Lehrte is the sole legal venue for all disputes directly or indirectly arising from the contractual relationship.
    All obligations from the contractual relationship are deemed as having to meet at the domicile of CFL.
    Legal venue for all claims from the agreement concluded between the Purchaser and CFL is the domicile of CFL in Lehrte.
  2. If individual provisions of this agreement are, or become, partially or completely invalid, the remainder of the agreement shall continue to be effective. This also applies if the agreement is found to contain a commission.
    To replace a completely or partially invalid provision or to fill an omission in the agreement a reasonable arrangement will be applied which – insofar as it is legally possible – comes closest to what the parties to the agreement intended or would have wanted given the sense and purpose the agreement had they considered the point.
  3. At all events, in particular in the case of cross-border deliveries, German Code of Civil Law (BGB) shall apply.
    The provisions of the Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 is subsidiary for international transactions. The arrangements set forth above take priority over CISG.
Translated from German. Only the German version is legally binding.