General Terms and Conditions of Sale and Delivery of CLR Chemisches Laboratorium Dr. Kurt Richter GmbH
Scope / Differing terms and conditions of the customer
1.1 These General Terms and Conditions of Sale and Delivery apply exclusively to companies within the meaning of Section 14 BGB [German Civil Code] (hereinafter referred to as “customer”) i.e. natural persons or legal entities that are performing their commercial or independent professional activities when concluding a legal transaction.
1.2 These General Terms and Conditions shall apply exclusively to our business relations with our customers, also with respect to information and advice. Where our General Terms and Conditions are implemented in business with a customer, they shall also apply to all further business relations between the customer and ourselves unless otherwise expressly agreed in writing. Differing terms and conditions of the customer are expressly rejected. They shall only apply if and to the extent expressly acknowledged by us in writing. Our silence regarding such differing general terms and conditions shall not be deemed in particular to be acknowledgement or consent, and this shall also apply to future contracts.
1.3 Our General Terms and Conditions shall apply in place of any general terms and conditions of the customer, also where such general terms and conditions stipulate that acceptance of an order is deemed to be the unconditional acknowledgement of the general terms and conditions, or where we deliver, after the customer has indicated the validity of its general terms and conditions, unless we have expressly waived the validity of our General Terms and Conditions in writing. By accepting our order confirmation, the customer expressly acknowledges that it waives its legal objection derived from the general terms and conditions.
Information / properties of the products
2.1 Information and explanations regarding our products shall be provided solely on the basis of our experience to date.
2.2 Reference to standards, similar technical regulations and technical information, descriptions and illustrations of the delivery item in quotations and brochures and in our advertising shall only represent information about a property of our products if we have expressly declared the quality to be a “property of the product”. These are otherwise non-binding, general specifications of performance.
2.3 We shall only be deemed to have given a guarantee if we have designated a property and/or the outcome of performance in writing as “guaranteed by law”.
2.4 Basic data for the manufacture of the products provided to us by the customer i.e. the values and specifications stated by the customer shall be the basis, if this is possible in technical and production terms, on which we manufacture the products and we shall attempt to achieve them as closely as possible.
2.5 We shall assume no liability that our products can be used for the customer’s intended purpose other than liability prescribed by law unless we have agreed otherwise in writing with the customer.
2.6 We shall retain title and copyrights to illustrations, drawings, indications of weight and dimension, performance and other property specifications, estimates of cost and other documents about our products and services. The customer undertakes not to make the documents specified in the foregoing sentence accessible to third parties unless we give our express written consent.
Product samples / specimens
Properties of our product samples or specimens shall only become an integral part of the contract if expressly agreed in writing. We shall retain title to our product samples or specimens and may not be sold against payment.
Conclusion of contracts / Scope of delivery / Procurement risk
4.1 Our quotations are subject to change unless they are expressly designated as binding or contain binding commitments. They are only requests to customers for orders. A contract shall be created, also in day-to-day business, only when we confirm the customer’s order in writing or text form (i.e. also by telefax or email). Where delivery is made immediately, our confirmation can be replaced by our invoice.
4.2 Our order confirmation shall be binding for the subject matter of the delivery contract.
4.3 All agreements, collateral agreements, warranties and amendments of contracts shall only be valid when given in writing. This shall also apply to any waiver of the written form itself. Verbal amendments or modifications of contracts shall be invalid. This shall not affect the precedence of an individual agreement (Section 305 b BGB).
4.4 In the event of call orders or delays in acceptance caused by the customer, we shall have the right to procure the material for the complete order and to manufacture the entire order quantity immediately. After the order is placed, any change requests by the customer can, therefore, no longer be considered unless this has been expressly agreed in writing.
4.5 The customer shall notify us in writing and in due time prior to conclusion of the contract of any special requirements of our products.
4.6 We shall only be obliged to deliver from our own product stock.
4.7 Assumption of a procurement risk is not based solely on our obligation to deliver an item which is defined solely by its class. We shall only assume a procurement risk by virtue of a separate written agreement stating “we assume the procurement risk…”.
4.8 If shipment is delayed at the customer’s request or for reasons for which the customer is responsible, we shall have the right to store the products, beginning on expiry of the period set in the written notice that the products are ready for shipment, and to invoice the costs incurred for this at 0.5% of the net invoice amount of the stored products for each full month or part thereof. This shall not affect the assertion of further rights. The customer shall have the right to prove that no costs or considerably lower costs were incurred.
Furthermore, we shall have the right, after the period expires, to dispose of the contractual products otherwise, and to deliver to the customer again after a reasonable period.
Delivery / Delivery time / Default in delivery
5.1 Binding delivery dates and delivery periods must be agreed expressly and in writing as binding. We shall make our best efforts to meet delivery dates and delivery periods that are not binding or approximate (approx., about etc.).
5.2 Delivery and/or service periods shall begin with the customer’s receipt of our order confirmation but not before all details about the execution of the order have been clarified and all other requirements to be fulfilled by the customer are met, in particular advance payments or securities agreed are made or provided in full. This shall apply to delivery dates and/or service dates. If the customer requests changes after placing the order, a new, reasonable delivery and/or service period shall begin upon our confirmation of the change.
5.3 The customer’s interest in our delivery or performance shall only lapse, in the absence of other written agreement, if we fail to deliver material parts or deliver with delay.
5.4 If we default in delivery, the customer must first set us a reasonable extension period for performance of at least 14 days, unless this is unreasonable in a specific case. If this elapses without result, damage claims for breach of duty, for whatever reason, shall exist only in accordance with the provisions of paragraph 5.6 and 11.
5.5 We shall not be in default as long as the customer is in default in fulfilling obligations towards us; this shall also include obligations under other contracts.
5.6 If the customer incurs damage as a result of our default, the customer shall have the right, to the exclusion of further claims, to request compensation for default. It shall amount, for each full week of delay, to 0.5% but as a whole to not more than 5% of the net price for that part of the total delivery which, as a result of the default, cannot be used in due time or according to the contract. No further compensation shall be due from us for damage as a result of delay. This shall not apply in the case of an intentional or fraudulent act by us, in the case of damages due to injury to life, limb or health, and in the case of default where a commercial transaction for delivery by a fixed date has been agreed within the meaning of the law.
5.7 We shall not be obliged to deliver as long as the means of transport to be provided by the customer is not available. However, we shall have the right, where the shipping order or call order can be executed, to arrange delivery with our own or hired means of transport. In this case, the products shall be transported at the customer’s risk.
Delivery subject to own receipt of delivery / Force majeure and other obstructions
6.1 If, through no fault of our own, we do not receive deliveries or services from our suppliers to provide the delivery due from us under the contract, despite due and adequate stocking prior to conclusion of the contract with the customer, or they are incorrect or not in due time, or events of force majeure occur, we shall notify our customer in writing or text form in due time. In such case, we shall have the right to postpone the delivery for the duration of the obstruction, or to rescind the contract in whole or in part for that part of the contract not yet fulfilled if we have met our foregoing duty to provide information and have not assumed a procurement risk. Events of force majeure are strikes, lock-outs, official intervention, epidemics or pandemics, energy shortages and shortages of raw materials, transport bottlenecks through no fault of our own, company obstructions through no fault of our own, e.g. due to fire, water and damage to machinery, and any other obstructions which, when considered objectively, were not caused by our negligence.
6.2 If a delivery date or delivery period is agreed with binding force and the agreed delivery date or the agreed delivery period is exceeded due to events according to paragraph 6.1., the customer shall have the right, after a reasonable extension period has elapsed without result, to rescind the contract for that part not yet fulfilled, if the customer cannot be objectively expected to adhere further to the contract. The customer shall have no further claims, especially claims for damages, in that case.
6.3 The above provision pursuant to paragraph 6.2 shall apply accordingly if a customary delivery period was exceeded for the reasons stated in paragraph 6.1, also if no fixed delivery date was contractually agreed.
Shipment / INCOTERMS / passing of risk / packaging, lump-sum disposal costs
7.1 Unless otherwise agreed in writing, we shall ship products uninsured at the risk and expense of the customer and ex works our respective location (INCOTERM EXW).
7.2 If our order confirmation includes a clause stipulated in the INCOTERMS, the INCOTERMS as last amended (currently INCOTERMS 2020) shall apply to the respective clause unless otherwise stated in our order confirmation.
7.3 Unless shipment is at the risk and expense of the customer and ex our works (INCOTERM EXW), we reserve the right to choose the transport route and the means of transport. We shall, however, endeavour to take the customer’s wishes into account with respect to the route and type of shipment. Any additional expenses as a result, also where delivery freight paid is agreed, shall be borne by the customer.
7.4 If shipment is delayed at the customer’s request or through the customer’s fault, we shall store the products at the customer’s expense and risk (see clause 4.8). In this case, notice that the products are ready for shipment shall be deemed equivalent to shipment.
7.5 If there is a statutory obligation to take back transport packaging and the customer requests us to take back transport packaging, the customer undertakes to have returns processed free domicile or arrange for the returns.
Notice of defects / Breach of duty / Warranty
8.1 The customer shall give us notice of recognisable material defects immediately but at the latest 14 days after collection, in the case of delivery ex works, otherwise after delivery. The customer shall give us notice of hidden material defects immediately after they are detected but at the latest within the warranty period according to paragraph 8.6. A notice of defects that fails to comply with requirements of time shall exclude any claim by the customer for breach of duty due to material defects. This shall not apply in the case of an intentional or fraudulent act by us, the assumption of a guarantee for the absence of defects by us or in the case of liability according to the Produkthaftungsgesetz [German Product Liability Act].
8.2 Notice of defects according to paragraph 8.1 shall be given in writing. A notice of defects which is not in due form shall also exclude any claim by the customer for defects.
8.3 The transport operator must also be notified of any material defects recognisable on delivery, and the recording of the defects shall be arranged by the transport operator. Notices of defects must include a description of the defect. Failure to give notice of defects in due time shall exclude any claim by the customer for breach of duty due to defects. This shall not apply in the case of an intentional or fraudulent act by us, in the event of injury to life, limb or health, or the assumption of a guarantee for the absence of defects, or liability according to the Produkthaftungsgesetz.
8.4 Once processing, treating, combining or mixing with other goods has begun, the products delivered, in the case of recognisable material defects, shall be deemed approved by the customer according to the contract. This shall apply if the products are shipped onward from their original destination. Before any of the above activities begin, the customer shall be responsible for clarifying, through appropriate checks in terms of scope and method, whether the delivered products are suitable for the processing purposes, process purposes and other purposes intended by the customer.
8.5 The customer must give notice in writing immediately of other breach of duty, setting a reasonable time limit for remedy, before asserting further rights.
8.6 If, by way of exception, breach of duty does not relate to the performance of work by us, the contract may not be rescinded if our breach of duty is negligible.
8.7 We shall provide a warranty for material defects for a period of one (1) year, calculated from the date on which the risk passes (see paragraph 7). This shall not apply if we are guilty of malice, intent or gross negligence and in the cases pursuant to the following section 11.1 (a) – (h). The limitation period in the event of a delivery recourse according to §§ 445a, 445b BGB remains unaffected.
8.8 Further claims by the customer for or in connection with defects or consequential damage caused by a defect, for whatever reason, shall exist only subject to the provisions of paragraph 11 unless these are damage claims resulting from a guarantee which is intended to cover the customer against the risk of any defects. In this case too, however, we shall be liable only for typical and foreseeable damage.
8.9 If the customer or a third party makes an incorrect rectification, unauthorised changes are made to the products, parts are exchanged or consumables used which do not comply with the specifications or our operating or maintenance instructions are not complied with, we shall not be liable for the resulting consequences. This shall not apply, however, if the warranty claim cannot be proved to be due to one of the above-mentioned reasons for exclusion.
8.10 Our warranty and liability arising therefrom shall also be excluded if defects and damages connected therewith cannot be proved to be due to defective material or to defective execution or defective instructions on use. Warranty and liability arising therefrom shall in particular be excluded with respect to the consequences of incorrect use, excessive use or inappropriate storage conditions, for example the consequences of chemical, electromagnetic, mechanical or electrolytic influences that do not correspond with the intended average standard influences. This shall not apply in the case of fraudulent or intentional conduct by us, or injury to life, limb or health, or liability according to the Produkthaftungsgesetz.
8.11 Claims based on defects shall not exist in the case of only a negligible deviation from the agreed or customary condition or usefulness.
8.12 Recognition of breach of duty, in particular in the form of material defects, shall only be valid when given in writing.
Prices / Payment terms / Objection of uncertainty
9.1 All our prices are in principle quoted in EUROs and exclude packaging, freight and value added tax at the legally valid rate which shall be borne by the customer. Prices and additional charges shall be determined by our general price list, valid at the time the contract is concluded, unless otherwise agreed.
9.2 We are entitled, at our reasonable discretion (§ 315 BGB), to unilaterally increase the prices for our deliveries and services in the event of an increase in manufacturing, material and/or procurement costs, wage and ancillary wage costs, social security contributions as well as energy costs and costs due to statutory requirements, environmental regulations, currency regulations, customs changes and/or other public charges if these directly or indirectly influence the costs of our contractually agreed deliveries and services and increase them by more than 5% and if there are more than 4 months between the conclusion of the contract and delivery/service. An increase in the aforementioned sense shall be excluded if the cost increase for individual or all of the aforementioned factors is offset by a cost reduction for other of the aforementioned factors in relation to the total cost burden for the delivery/service (cost netting). If the aforementioned cost factors are reduced without the cost reduction being offset by an increase in other of the aforementioned cost factors, the cost reduction shall be passed on to the customer in the form of a price reduction. If the new price is 20% or more above the original price due to our aforementioned right to adjust prices, the customer shall be entitled to withdraw from contracts not yet fully performed with regard to the part of the contract not yet performed. However, he may only assert this right immediately after notification of the increased remuneration.
9.3 Our invoices are payable within 14 days after delivery of the products with 2% discount, 30 days net after delivery of the products, unless otherwise agreed in writing.
9.4 Once in default, default interest shall be charged of 9 percentage-points above the respective applicable base interest rate when the claim for payment falls due. We reserve the right to assert damage in excess of this.
9.5 The date payment is received by us or credited to our account shall be deemed the payment date.
9.6 The customer’s default in payment shall cause all claims for payment under the business relationship with the customer to become due immediately. Regardless of any agreements to defer payments or agreements on payment by instalment, in this case all the customer’s liabilities due to us shall become payable immediately.
9.7 If payment terms are not met or circumstances known or recognisable that, in our proper commercial judgement, give rise to justified doubt as to the customer’s creditworthiness, also including such facts that already existed when the contract was concluded but which were unknown to us or did not have to be known to us, we shall have the right, notwithstanding further statutory rights in such cases, to cease further work on current orders or the delivery, and to request advance payments or the provision of securities which are acceptable to us for deliveries still outstanding, and, after expiry of a reasonable extension period to provide such securities without result, to rescind the contract, irrespective of other statutory rights. The customer shall be obliged to reimburse us for all damages incurred by failure to fulfil the contract.
9.8 The customer shall have a right of retention or right of set-off only with respect to those counter-claims that are not disputed or have been recognised by declaratory judgment.
9.9 The customer can only exercise a right of retention if its counter-claim relates to the same contractual relationship.
Retention of title
10.1 We retain title to all goods we deliver (hereinafter referred to as a “goods subject to retention of title”) until all our claims under the business relationship with the customer, including claims arising in the future from contracts concluded at a later date, are paid. This shall also apply to any balance in our favour if any or all claims are incorporated by us in a current account and the balance has been established.
10.2 The customer shall insure goods subject to retention of title adequately, in particular against fire and theft. Claims against the insurance arising from a case of damage relating to goods subject to retention of title are herewith already assigned to us in the value of the goods subject to retention of title.
10.3 The customer shall have the right to resell the delivered products in the normal course of business. The customer is not permitted to make other disposals, especially pledging or granting of equitable lien. If the goods subject to retention of title are not paid for immediately by a third-party purchaser when resold, the customer shall be obliged to resell under retention of title only.
The right to resell goods subject to retention of title shall cease to apply at once if the customer suspends its payment or defaults in payment to us.
10.4 The customer already herewith assigns to us all claims including securities and ancillary rights that accrue to the customer against the end user or third parties from or in connection with the resale of goods subject to retention of title. The customer may not reach an agreement with its purchasers that excludes or impairs our rights in any way or nullifies the assignment of the claim in advance. If goods subject to retention of title are sold with other items, the claim against the third-party purchaser in the amount of the delivery price agreed between ourselves and the customer shall be deemed assigned unless the amounts applicable to the individual goods can be determined from the invoice.
10.5 The customer shall have the right to collect claims assigned to us until revoked by us, this revocation being admissible at any time. At our request, the customer shall be obliged to give us the information and documents in full required to collect assigned claims and, unless we do so ourselves, notify its purchasers immediately of the assignment to us.
10.6 If the total value of the securities existing for us according to the foregoing provisions exceeds the secured claims by more than 10%, we shall be obliged, at the customer’s request, to release securities at our discretion.
10.7 We treat and process goods subject to retention of title as manufacturer within the meaning of Section 950 BGB but without obligation on our part. If goods subject to retention of title are processed or connected inseparably with other items that do not belong to us, we shall acquire co-ownership in the new item in the ratio of the invoice amount for our goods to the invoice amounts for the other processed or connected items. If our goods are connected with other movable items into a uniform item that is deemed the principal item, the customer shall now already assign co-ownership thereof to us in the same ratio. The customer shall maintain ownership or co-ownership free of charge on our behalf. Rights of co-ownership accordingly arising shall be deemed goods subject to retention of title. The customer shall be obliged at any time at our request to provide us with the information required to assert our ownership or co-ownership rights.
10.8 If, in the case of deliveries abroad, certain measures and/or declarations are required on the part of the customer in the importing country in order for the aforementioned retention of title or the other rights referred to therein to become effective, the customer shall notify us of this in writing or in text form and shall carry out or submit such measures and/or declarations at its own expense without delay. We shall cooperate to the necessary extent. If the law of the importing country does not permit a retention of title but allows us to reserve other rights to the delivery item, we may exercise all such rights at our reasonable discretion (§ 315 BGB). To the extent that an equivalent security of our claims against the customer is not achieved thereby, the customer shall be obliged to provide us with other suitable securities in the delivered goods or other securities at our reasonable discretion (§ 315 BGB) at its own expense without undue delay.
Liability / Exclusion and limitation of liability
11.1 We shall be liable in principle only for intent and gross negligence by us and our legal representatives and vicarious agents. Our liability and that of our legal representatives and vicarious agents for slight negligence shall, therefore, be excluded except in the following cases:
(a) breach of material contractual obligations; material contractual obligations are obligations whose fulfilment determines the contract and on whose compliance the customer may rely;
(b) if, in the event of breach of obligations within the meaning of Section 241 (2) BGB, it is no longer reasonable to expect the customer to accept our performance;
(c) in the event of injury to life, limb and health;
(d) where a guarantee for the quality of performance, the existence of successful performance, or a procurement risk has been assumed;
(e) fraudulent intent;
(f) initial impossibility;
(g) claims under the Produkthaftungsgesetz; or
(h) other cases of liability prescribed by law.
11.2 If we or our vicarious agents are only responsible for slight negligence and none of the cases mentioned in clause 11.1, clauses (a), (c), (d), (e), (g) and (h) apply, our liability is limited to a maximum of EUR 1,000,000.00 and – even in the event of a breach of material contractual obligations – to the damage typical and foreseeable at the time of conclusion of the contract. Any further liability is excluded.
11.3 Liability for damages other than the liability stipulated in the above paragraphs shall be excluded without regard for the legal nature of the asserted claim. This shall apply in particular to damage claims arising from fault when concluding a contract, due to other breach of duty or due to claims in tort for compensation in respect of property damages according to Section 823 BGB.
11.4 Exclusion resp. limitation of liability according to the foregoing paragraphs 11.1 to 11.3 shall apply to the same extent for the benefit of our executives and non-executive employees and other vicarious agents as well as our sub-contractors.
11.5 Claims by the customer for damages arising from this contractual relationship may only be asserted within a preclusion period of one (1) year as of commencement of the statutory limitation period. This shall not apply if we are guilty of malice, intent or gross negligence and in the cases pursuant to section 11.1 (a) – (h). The limitation period in the case of a delivery recourse according to §§ 445a, 445b BGB remains unaffected.
11.6 There is no connection between the reversal of the burden of proof and the foregoing provisions.
Export control / Intra-Community trade
12.1 In the absence of other written agreement, the delivered product is intended at all times to remain and to be used and sold in the first country of delivery agreed with the customer.
12.2 The export of certain goods may be subject to authorisation e.g. because of their nature or intended purpose or final destination. This applies in particular to so-called dual-use goods. The customer itself shall be obliged to comply strictly with the relevant export regulations and embargos for these goods (products, goods, software, technology), especially of the European Union (EU), Germany resp. of other EU Member States and, if applicable, the USA.
12.3 The customer undertakes to indemnify us against all damages resulting for us from the negligent breach of the foregoing obligations pursuant to paragraphs 12.1 to 12.5. The scope of the damages to be reimbursed shall also include the reimbursement of all necessary and reasonable expenses which we incur or have incurred, in particular the costs and expenses for any legal defence and any official administrative fines or penalties.
12.4 The customer confirms the correctness of its VAT ID no. which the customer shall give us without being asked to do so immediately after the contract is concluded. The customer undertakes to notify us and its competent domestic tax authority of any change in its name, address, company name and VAT ID no. immediately. If a delivery is regarded as subject to tax due to errors in specifying the name, company name, address or VAT ID no., the customer shall refund the tax to be paid by us as a result.
12.5 In the case of double taxation – sales and purchase tax in the customer’s country, turnover tax in Germany – the customer shall pay to us, waiving the defence of disenrichment, the excess turnover tax paid i.e. the turnover tax not owed due to the duty to pay sales and purchase tax.
Third-party property rights
13.1 We shall only be obliged to supply the products free of third-party rights or claims which are based on industrial property rights or other intellectual property according to the law of the Federal Republic of Germany, and which we were aware of when the contract was concluded.
13.2 If a third party asserts justified claims against our customer to the products supplied by us pursuant to paragraph 1 above, we shall be liable to the customer within the period determined in paragraph 8.7.
13.3 Our obligation according to paragraph 1 shall not relate to cases where
(a) the infringement of property rights results from the fact that, in manufacturing the products, we acted on information or other data that were provided or specified to us by the customer; or
(b) the infringement of property rights is due to an application of the customer which we could not foresee or is caused by the fact that the products are changed by the customer or mixed or used together with products which were not supplied by us.
13.4 This shall not affect our liability according to paragraph 11.
Confidentiality / Data protection
14.1 The customer undertakes to keep confidential such facts, documents and knowledge of which the customer becomes aware in the course of performing the business relations with us, and which contain technical, financial, business or market-related information about our company, if we have specified that the respective information must be kept confidential or we have an obvious interest in its confidentiality (hereinafter collectively referred to as confidential information). The customer shall use the confidential information solely for the purpose of implementing and performing the contractual relationship with ourselves in accordance with the contract and the individual contracts based on this.
14.2 Disclosure of confidential information to third parties by the customer shall require our express and prior written consent
15. Place of performance / Place of jurisdiction / Applicable law
15.1 Place of performance for all contractual obligations is our company’s registered office except where an obligation to be performed at the place of business of the creditor is assumed.
15.2 All disputes shall be settled, if legally admissible, exclusively before a court of law which is competent for our company’s registered office. We also have the right, however, to bring an action against the customer at its place of general jurisdiction.
15.3 All legal relations between the customer and ourselves shall be governed exclusively by the law of the Federal Republic of Germany, in particular to the exclusion of the UN Sales Convention (CISG).
Chemisches Laboratorium Dr. Kurt Richter GmbH – last revised: June 2021
General Terms and Conditions of Purchase CLR Chemisches Laboratorium Dr. Kurt Richter GmbH
General, scope of application
1.1 Our General Terms and Conditions of Purchase apply to the purchase of goods and the procurement of services and work performance.
1.2 Our General Terms and Conditions of Purchase shall apply exclusively to companies within the meaning of Section 14 BGB [German Civil Code] i.e. natural persons or legal entities which, when concluding a legal transaction, act in the performance of their commercial or independent professional activities.
1.3 Our General Terms and Conditions of Purchase apply exclusively to every contract with our contract partner (hereinafter referred to as Supplier). We do not acknowledge any terms and conditions of the Supplier which are contrary to or differ from our General Terms and Conditions of Purchase unless we have expressly approved their validity in writing. Our General Terms and Conditions of Purchase shall also apply if we unconditionally accept a delivery or service of the Supplier in the knowledge of terms and conditions of the Supplier which are contrary to or differ from our General Terms and Conditions of Purchase.
1.4 With the first delivery or performance based on these General Terms and Conditions of Purchase, the Supplier acknowledges that our General Terms and Conditions of Purchase as respectively amended are agreed, also for all other contractual relationships. We shall provide the Supplier with the respectively current valid version of our General Terms and Conditions of Purchase free of charge at first request. Our current General Terms and Conditions of Purchase can also be downloaded and printed from the internet at https://www.clr-berlin.com/de/agb/ .
1.5 All agreements concluded between ourselves and the Supplier for the purpose of executing the contract and which go beyond or amend these General Terms and Conditions of Purchase shall be set down in writing in that contract. Any amendments to the contract, modifications or verbal collateral agreements shall only apply if confirmed by us in writing. Verbal collateral agreements are not valid.
Conclusion of contracts, content of contracts
2.1 Only written purchase orders with signature or with our electronic mark of origin shall be valid. The content of our purchase order exclusively shall determine the content of the contract.
2.2 The Supplier shall confirm the purchase order in writing within (7) calendar days of the purchase order date. After expiry of this period, we shall have the right to revoke our purchase order. Claims by the Supplier based on a valid revocation shall be excluded. Purchase orders shall be deemed accepted unless the Supplier objects to them in writing or text form within (7) calendar days if we expressly indicated this legal consequence to the Supplier when placing the purchase order.
2.3 We shall have the right to rescind the contract or, in the case of continuing obligations, the contractual relationship, without complying with a time limit, if the financial situation of the Supplier deteriorates to such an extent that it is probable that the Supplier shall not fulfil its contractual obligations or shall not do so in due time. This shall be the case e.g. when the Supplier’s credit ranking at recognised rating agencies such as Creditreform, Moody’s, Fitch etc. deteriorates to such an extent that we can justifiably, and taking into account the interests of the Supplier, assume that the Supplier shall not fulfil its contractual obligations or shall not do so in due time. Such deterioration exists in particular if the Supplier’s credit rating index at Creditreform falls below 499 or the rating at international agencies (Moody’s, Fitch etc.) falls to CCC (resp. its equivalent) or lower.
2.4 We shall have the right, also after conclusion of the contract, to request changes to the delivery item at our reasonably exercised discretion (Section 315 BGB) if such changes can be reasonably expected of the Supplier.
2.5 The correspondence concerning the implementation of the contract (prices/terms) must be conducted with our purchasing department. All the Supplier’s documents must specify our purchase order number and material number, the contact partner and the date of the purchase order/order for services.
Delivery, service, default, contractual penalty
3.1 Goods shall be delivered according to Incoterm DDP (Delivered Duty Paid) unless otherwise agreed in writing. The agreed dates and time limits for delivery and service shall be binding. Compliance with these dates and time limits shall be determined by receipt of the goods in the case of purchase contracts resp. by performance of the services in the case of service contracts, and by execution of the work at our premises resp. at the agreed place of delivery or performance in the case of contracts for work.
3.2 The Supplier shall be obliged to notify us immediately in writing – with prior verbal notice – if circumstances arise or if the Supplier becomes aware of circumstances indicating that agreed time limits for delivery or service cannot be met. This shall also apply if the Supplier is not responsible for delays in delivery or service. We shall be entitled to compensation from the Supplier for the damage resulting therefrom if this duty is violated. If delivery or service is delayed, the Supplier shall provide us with detailed written information about the reason for the delay and the action taken and planned by the Supplier to remedy the situation.
3.3 We shall be entitled to assert our statutory rights in the case of default in delivery or service. After expiry of a reasonable extension of time without result, we shall in particular have the right to claim damages in lieu of performance and to rescind the contract, also if only for the part not yet fulfilled. If we claim damages, the Supplier shall also have the right to prove that it is not responsible for the breach of duty. The above-mentioned extension of time shall not apply if a fixed date has been agreed with the Supplier.
3.4 During the period of default, we may at our option purchase goods or services from other sources and reduce our purchase orders to the Supplier commensurately in accordance with the amount of goods or services purchased elsewhere, without liability towards the Supplier, or we may instruct the Supplier to purchase the shortages in goods or services from third parties on our behalf at the price agreed with the Supplier.
3.5 Unless proven otherwise, the quantities, weights, dimensions and delivery quantities determined during our incoming goods inspection shall be binding.
Shipping regulations, delivery dates
4.1 Delivery items shall be packed appropriately and in an environmentally beneficial manner and delivered using suitable containers and means of transport, as well as in accordance with our respective delivery regulations. The regulations of the Gefahrstoffverordnung [German Ordinance on Hazardous Substances] shall apply additionally in the case of hazardous substances and must be complied with.
4.2 A delivery note shall be enclosed with each shipment. The delivery note and all shipping documents shall specify the date of dispatch, our purchase order number and material number of the delivery item. If the Supplier fails to do this, we shall not be responsible for any delays in processing. Any costs incurred by us due to non-compliance with the above stipulations shall be reimbursed by the Supplier.
4.3 The delivery period or delivery date specified in our purchase order shall be binding for the Supplier.
4.4 Unless agreed otherwise, the ordered goods shall generally be delivered “free domicile” and at the Supplier’s risk up to the time of complete delivery at the contractually agreed place of receipt or use.
4.5 The respectively relevant tariff, transport and packaging regulations of the post office and railway, for transport by road, sea or air etc. shall be observed when shipping goods. In particular, customs regulations and regulations governing hazardous substances shall be observed. If we have not explicitly specified certain transport requirements, the most advantageous means of transport for us shall be selected in each case.
4.6 If the services of sub-contractors are enlisted, they shall specify the Supplier as their customer in correspondence and shipping documents, stating the purchase order data specified above.
The goods delivered shall be identified in line with any statutory provisions and EC/EU directives. The Supplier undertakes prior to delivery to forward all necessary product information in the latest form in due time, relating in particular to composition and durability e.g. product specifications, safety data sheets, processing instructions, identification instructions, assembly instructions, industrial safety measures and specifications etc.
Proof of performance and acceptance
6.1 Any contractually specified proof of performance and acceptance shall be effected free of charge for us and documented by both parties in writing.
6.2 Fictitious acceptance shall be excluded.
6.3 Formal acceptance as defined by paragraph 6.1 above shall also be required for the remuneration to become due under contracts for work and materials.
7.1 Unless otherwise agreed, agreed prices are fixed prices free domicile and include all costs for packaging and transport to the specified place of receipt or use, customs formalities and customs duties etc.
7.2 The applicable value added tax is not included in the price. Value added tax valid on the date of invoicing shall be indicated separately on the invoices. Price increases shall be subject to our written consent. Purchase order data must be specified on the invoice. Invoices shall be sent under separate cover after delivery to the invoice address specified in our purchase order/order for services.
7.3 Unless agreed otherwise, invoices shall be paid by us net within 30 days. The time limit for payment shall begin to run as of delivery of the goods to the place of receipt (shipping address) resp. acceptance of the service or work and receipt of the invoice at the invoice address specified in the purchase order/order for services.
7.4 The payment term shall not begin to run before we have received complete delivery resp. complete provision of the service and an invoice specifying the contractual value added tax and purchase order number as well as the Supplier’s tax identification number.
7.5 We reserve the right to select the mode of payment. If payment is made by bank transfer, our payment obligation shall be deemed to have been discharged in due time when the bank transfer order was forwarded to our bank.
7.6 In the event of incomplete or faulty delivery or service, we shall have the right to withhold payment in full or in part until the delivery or service has been duly effected. The Supplier’s right to withhold and set off against our claims shall only apply to those claims acknowledged by us or determined by declaratory judgment unless the counterclaim is based on a violation of material contractual obligations by us (for definition see paragraph 20.1).
Notwithstanding our other rights, force majeure, industrial disputes, operational disruptions for which we are not responsible, riots, administrative measures and other comparable events, which were unavoidable for us and not caused by our negligence, shall entitle us to rescind the contract in whole or in part if such events are of significant duration and result in a substantial reduction of our requirements.
Retention of title
9.1 If the Supplier’s general terms and conditions provide for delivery only subject to retention of title, a simple retention of title only shall be deemed agreed. In such case, the Supplier shall authorise us to process and sell the goods in the due course of business.
9.2 We shall not acknowledge any enlarged and/or extended retention of title.
Inspection for defects, liability for defects
10.1 The Supplier shall carry out quality assurance of a suitable type and scope which always complies with the latest state of the art and official as well as statutory requirements, which in particular ensures adequate control of all outgoing goods with regard to the contractually agreed specifications, including the requirements in accordance with these General Terms and Conditions of Purchase, and shall provide us with evidence of this in a suitable form at our first request. A corresponding quality assurance agreement shall be concluded with us at our first request.
10.2 The parties agree that the incoming goods inspection pursuant to § 377 of the German Commercial Code (HGB) shall be limited by us to externally visible transport damage and deviations in quantity, insofar as this is relevant for the respective contract. In this respect, a complaint period of 10 days from delivery shall apply in accordance with section 3 of these General Terms and Conditions of Purchase. Defects which are not recognisable to us according to the above standard (e.g. defects/functional faults after commissioning of technical goods, e.g. incorrect configurations, etc.) must be reported to the Supplier by us immediately after their discovery.
10.3 We shall be entitled to assert full statutory claims based on defects. In any event, if defects are found, in the case of purchase contracts or contracts for work, we shall have the right to request the Supplier at our option to remedy the defect or deliver new goods. We expressly reserve the right to damages, especially damages in lieu of performance.
10.4 If defective goods are returned, the Supplier shall bear the risk of loss and deterioration of the goods.
10.5 The limitation period for breach of duty due to defective performance is 36 months as of the passing of risk, and 30 years for defects of title.
10.6 In addition to cases provided for by law, in which the limitation period is suspended, the limitation period for claims and rights in the event of breach of duty due to defective performance shall also be suspended during the time between giving notice of defects and completion of rectification.
Warranties by the Supplier, REACH, procedure in the event of breach of duty due to defective performance
11.1 The Supplier warrants that all deliveries / services are state of the art, comply with relevant national and European legal provisions as well as the regulations and guidelines issued by public authorities, employers’ liability insurance associations and professional associations in the Federal Republic of Germany. In addition, the Supplier shall be responsible for the environmental compatibility of the delivered goods and packaging materials. Insofar as it is necessary to diverge from these regulations in individual instances, the Supplier shall be obliged to obtain our written consent for this. This consent shall not affect other obligations under purchase contracts or contracts for work, including any guarantees as to the quality of the goods or work.
11.2 The Supplier undertakes in particular to comply with the specifications and measures resulting from Regulation (EC) No 1907/2006 of 18 December 2006 (REACH Regulation) in respect of all substances, preparations and articles (goods) supplied/provided to us. If the Supplier violates these obligations under the REACH Regulation relating to the Supplier, we shall have the right to rescind the contract because the goods supplied by the Supplier do not or no longer comply with the requirements of the REACH Regulation.
11.3 A CE mark must be affixed to technical work equipment within the meaning of the EU Machinery Directive. The scope of delivery includes required documentation, an EC declaration of conformity and operating instructions in German.
11.4 If the delivered goods or the work due or the service provided do not conform to an assumed guarantee or warranted property, the Supplier shall be liable for all resulting damages, including consequential damages.
11.5 We shall have the right to request the Supplier to present certificates of origin and inspection for the goods to be delivered.
11.6 If material defects occur in the delivery items during the warranty period, the Supplier may first make supplementary performance within a reasonable period of time, if this can be expected of us, whereby we shall in principle be entitled to choose the manner of supplementary performance. The Supplier shall have the right to refuse our chosen manner of supplementary performance subject to the conditions of Section 439 (2) BGB.
11.7 Our claims for damages resp. compensation for wasted expenditure shall not be affected. All costs incurred for supplementary performance, replacement delivery or repair (labour / material / transport / any recall required etc.) shall be borne by the Supplier.
11.8 We shall have the right, without this relieving the Supplier from its duty, to remedy a defect ourselves at the Supplier’s expense in the case of imminent danger or particular urgency or if the defects are of a minor nature and the cost of remedying them does not exceed more than 5 % of the net delivery price for the defective goods or a particularly high loss is imminent in proportion to the delivery price.
11.9 In the case of defects in title, the Supplier shall additionally indemnify us against any third-party claims.
11.10 If we take back goods produced and/or sold by us on account of defects in the goods delivered by the Supplier or if our selling price was reduced for this reason or if claims were otherwise asserted against us for this reason, we reserve the right to seek recourse against the Supplier, without having to set the otherwise required time limit in order to exercise our rights based on defects.
11.11 Notwithstanding the above-mentioned provision, the limitation period for breach of duty due to defective performance in the form of material defects shall begin to run at the earliest two months after the date on which we have satisfied the claims made against us by our customer on account of the defect but at the latest five years after delivery by the Supplier.
Export control data and foreign trade data
12.1 The Supplier is aware that the export of certain goods by us may be subject to a licence e.g. because of their nature or intended purpose or final destination. The Supplier shall, therefore, meet the respective requirements of national and international export, customs and foreign trade law for all goods to be delivered abroad and services to be provided abroad and shall obtain the required export licences unless, according to the applicable foreign trade law, it is not the Supplier but ourselves or a third party who is obliged to apply for the export licence.
12.2 The Supplier shall bear expenses and damages which can be proved (including internal handling charges and administrative costs) which we incur due to an error or incorrectness of export control data and foreign trade data. The Supplier shall, therefore, be obliged to indemnify us against all damages which we incur due to the culpable violation of the foregoing obligations pursuant to paragraph 12.1. The scope of the damages to be reimbursed shall also include the reimbursement of all necessary and reasonable expenses which we incur or have incurred, in particular the costs and expenses for any legal defence and any official administrative fines or penalties.
Product liability, exemption from liability, third-party liability insurance
13.1 If the Supplier is responsible as well as ourselves to a third party for product damage in external relations, the Supplier shall, unless agreed otherwise in writing, be obliged to indemnify us in this respect at first request against all third-party damage claims if the origin lies within the Supplier’s organisation and sphere of control. In addition to the payment of damages to third parties, the Supplier’s duty to indemnify shall include as well the costs of reasonable legal defence, recall costs, costs for testing and inspection, costs for replacement and our reasonable administrative costs and other expenses for processing the damage.
13.2 In connection with its liability for events of damage within the meaning of paragraph 13.1, the Supplier shall also be obliged to reimburse any expenses as defined by Sections 683, 670 BGB and Sections 830, 840 and 426 BGB resulting from or in connection with a recall campaign implemented by us. This shall apply in particular to recall campaigns within the scope of the Produktsicherheitsgesetz [German Product Safety Act]. Where possible and reasonable, we shall inform the Supplier of the content and scope of the recall measures to be implemented and shall give the Supplier the opportunity to comment. Other statutory rights shall not be affected.
13.3 The Supplier must maintain third-party liability insurance with terms customary in the industry, with minimum coverage of EUR 5 million for each event of damage, for the duration of the contractual relationship including warranty period and limitation period. The Supplier must prove the existence of such insurance to us on request; lower coverage shall be agreed with us in individual cases.
Access to the company site by vehicle or on foot
The instructions of our specialised personnel and/or the works security staff shall be followed when our company site is accessed by vehicle or on foot. Prior notice shall be given before entering our site by vehicle or on foot. Regulations of the StVO [German Road Traffic Regulations] and the StVZO [German Road Vehicle Registration Regulation] shall be observed.
If the Supplier’s deliveries / services produce waste as defined by German waste legislation, the Supplier must recycle and/or dispose of such waste at its own expense, unless agreed otherwise, in accordance with the provisions of waste legislation. Ownership, risk and responsibility under waste legislation shall pass to the Supplier at the time the waste is produced.
Third-party property rights
16.1 The Supplier shall be responsible for ensuring that third-party rights are not violated in connection with the Supplier’s delivery or service.
16.2 If a claim is brought against us by a third party for violation of property rights, the Supplier shall be obliged to indemnify us against such claims at first written request. We shall not have the right to enter into any agreements, in particular to conclude a settlement, with the third party without the Supplier’s consent.
16.3 The limitation period for the claims specified in paragraphs 16.1 to 16.2 is 10 years as of conclusion of the contract.
Documents and confidentiality, protection of know-how
17.1 All business or technical information and data of any kind, which we have made available, including characteristics contained in any items, documents or data provided and other know-how or experience – hereinafter collectively referred to as “information” – shall be treated confidentially by the Supplier in relations with third parties, for as long as and to the extent that the information is not proven to be in the public domain, and may only be made available to those persons at the Supplier’s own company who necessarily have to be called upon to use such information for the purpose of delivery to us and who have likewise given a written undertaking to maintain confidentiality. The information shall remain our exclusive property.
17.2 Such information may not be duplicated or used for commercial purposes other than for deliveries or services for us without our prior written consent.
17.3 The above agreement concerning confidentiality and use of information shall also survive termination of the delivery relationship until the respective information or characteristic lawfully enters the public domain.
17.4 At our request, all information and data obtained from us (at our request, including copies or records made) and items provided on loan shall be returned to us immediately and in full, or destroyed and their destruction confirmed in writing.
17.5 We reserve all rights to such information and data (including copyrights and the right to use industrial property rights such as patents, industrial designs, protection of proprietary rights etc.). If these were made available to us by third parties, this reservation of rights shall also apply in favour of such third parties.
17.6 Products manufactured according to documents prepared by us or according to our confidential information may not be used by the Supplier itself, nor offered or supplied to third parties unless the information which we have specified has lawfully entered the public domain or is state of the art.
17.7 Drawings, drafts etc., which the Supplier has produced on the basis of our special information, shall become our unrestricted property without additional remuneration. Declarations to the contrary by the Supplier, e.g. relating to documents provided to us, shall not be binding.
18.1 For the Supplier’s deliveries resp. services, the Supplier shall comply with applicable safety regulations and the agreed parameters resp. limit values which correspond to the state of the art resp. go beyond the state of the art.
18.2 The Supplier undertakes to use only materials which conform with the respectively applicable statutory safety requirements and safety regulations. This shall also apply with regard to regulations designed to protect the environment. This obligation shall include all regulations in force for Europe, including the country of manufacture, as well as the regulations of the importing countries notified to the Supplier with our purchase order, if they differ from the former.
18.3 If the Supplier’s goods do not meet the requirements imposed in paragraphs 18.1 to 18.2, we shall have the right to rescind the contract. This shall not affect further damage claims.
18.4 Planned changes to the delivery item or object of performance must be notified to us in writing. They shall require our prior written consent.
We shall have the right to audit the Supplier ourselves or have an expert of our choice perform the audit. This shall include an inspection of the Supplier’s operations and quality assurance system and a subsequent assessment. Findings obtained here shall form the basis of our awarding further orders and our internal rating of the company.
Liability, exclusion and limitation of liability
20.1 We shall be liable according to statutory provisions for our own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by our legal representatives or vicarious agents. We shall also be liable according to statutory provisions for the violation of material contractual obligations, in the case of any negligence, and in the event of impossibility for which we are responsible and in the event of injury to life, limb and health, in the case of any negligence, also caused by legal representatives or vicarious agents and in other cases of mandatory statutory liability.
“Material contractual obligations” are obligations that protect the legal positions of the Supplier which are material to the contract and which have to be granted to the Supplier under the contract in terms of subject matter and purpose. Material contractual obligations are also obligations, the fulfilment of which makes the due performance of the contract at all possible in the first place, and where the Supplier regularly relies on and may rely on compliance with such obligations.
20.2 In cases other than those stated in paragraph 20.1 above, we shall be liable according to statutory provisions as well for culpable breach of duty, irrespective of the legal nature of the claim asserted, in respect of all damage claims asserted against us arising from this contractual relationship but not in the case of slight negligence.
20.3 In the event of our liability under paragraph 20.2 above and in the event of liability without negligence, especially given initial impossibility and defects of title and also in the case of violation of a material contractual obligation, we shall be liable only for typical and foreseeable damage unless we or our executives or vicarious agents are reproached with intentional or grossly negligent breach of duty.
20.4 Liability for damage other than the liability provided for in the above paragraphs shall be excluded without regard to the legal nature of the asserted claim. This shall apply in particular to damage claims arising from negligence when concluding a contract, other breach of duty or claims in tort for compensation in respect of property damages pursuant to Section 823 BGB.
20.5 Exclusion resp. limitation of liability according to the foregoing paragraphs 20.1 to 20.4 shall apply to the same extent for the benefit of our executive and non-executive employees and other vicarious agents as well as our sub-contractors.
20.6 Claims by the Supplier for damage from the contractual relationship may only be asserted within a preclusion period of one year as of commencement of the statutory limitation period. This shall not apply if we are culpable of fraudulent intent, gross negligence or intent.
20.7 There is no connection between the reversal of the burden of proof and the foregoing provisions.
If our purchase order includes a clause stipulated in the INCOTERMS, the INCOTERMS as last amended shall apply to the respective clause unless otherwise stated in our purchase order.
Mindestlohngesetz (MiLoG) [German Minimum Wage Law], guarantee of a minimum wage
22.1 The Supplier declares and undertakes to employ its own personnel, especially if they are called upon to fulfil the contractual obligation with respect to ourselves, according to the respectively valid provisions of the Mindestlohngesetz, in particular to pay them the minimum wage provided for in the Mindestlohngesetz.
22.2 If the Supplier uses a further contractor, service provider or other sub-contractor to fulfil its contractual obligations towards us, the Supplier undertakes to bind such party fully as well to provide proof in respect of compliance with the provisions of the Mindestlohngesetz. The Supplier further undertakes at our request to provide us with a copy of proof of the sub-contractor’s compliance with the Mindestlohngesetz.
22.3 If the Supplier fails to comply with the above obligations or fails to do so in full or incorrect information concerning compliance with the Mindestlohngesetz is provided, we shall have the right to end the contractual relationship with the Supplier without complying with a period of notice. Such right of termination shall also exist if a contractor, service provider or other sub-contractor, whose employees are used to fulfil the contractual obligations of the Supplier towards ourselves, fails to comply with the provisions of the Mindestlohngesetz.
The allegation of a violation of the provisions of the Mindestlohngesetz shall suffice unless the Supplier can fully and verifiably disprove this allegation within a period of 10 days after knowledge of the allegation. No prior notice shall be required.
22.4 The Supplier shall compensate us for any damage arising directly or indirectly from the violation of the above obligations or from the termination of the contract.
The parties are responsible for compliance with all relevant statutory data protection provisions, in particular the German Data Protection Regulation (DSGVO) and the German Federal Data Protection Act (BDSG), as well as for the lawfulness of data transfer and data processing of personal data. The parties undertake to process personal data provided by each other exclusively in a lawful and transparent manner and exclusively for the provision of the contractual services. In addition, our data protection policy applies: https://www.clr-berlin.com/privacy-statement/ .
Compliance, Sustainability Policy in our supply chain
We have declared the concept of compliance to be a central corporate value. We therefore expect the supplier to observe the applicable national and international legal provisions in the course of his business activities for and with us. We have summarised the important principles in the “Guideline for Sustainability in our Supply Chain”, which can be accessed and printed out at https://www.clr-berlin.com/gtc/ . We expect each supplier to implement the principles set out in this policy in their business. We also expect the supplier to communicate these principles and requirements to its subcontractors and suppliers and to encourage them to comply with the principles in the policy.
25.1 The Supplier shall be obliged to hold spare parts available for the goods supplied to us for a period of at least 10 years after the delivery.
25.2 If the Supplier intends to discontinue the production of spare parts for the goods supplied to us, the Supplier shall notify us of this immediately after deciding to discontinue them. This decision must be made, subject to paragraph 1, at least one year before production is discontinued.
Place of jurisdiction, applicable law, final provisions
26.1 Place of jurisdiction is Berlin/Federal Republic of Germany unless another place of jurisdiction is prescribed by law. However, we are also entitled to sue the Supplier at its general place of jurisdiction.
26.2 The Law of the Federal Republic of Germany shall apply exclusively to all legal relations between the Supplier and ourselves, excluding the UN Sales Convention. The above provisions shall also apply if the Supplier is a foreigner or its registered office is located abroad.
26.3 Place of performance is in general the geographical location of the goods specified by us in writing, otherwise the location of the registered office of our company. Place of performance for payments to us is the registered office of our company.
CLR Chemisches Laboratorium Dr. Kurt Richter GmbH, Version 09/21 General Terms and Conditions of Purchase