1. General
These Terms of Business shall apply with respect to entrepreneurs within the meaning of Section 310 (1) German Civil Code BGB. Provisions contrary to or varying from these Terms of Business shall only apply if we expressly agree to their validity. These Terms of Business shall also apply for all future transactions with the contractual party insofar as these relate to legal transactions of a similar type.
Our quotations, including any parts thereof, are subject to change. Oral and telephonic agreements, require written confirmation.
Our samples submitted along with quotations, analytical data, etc. are provided for inspection only and will not be deemed binding for the subsequent delivery of products. We reserve the right to make changes in keeping with generally accepted commercial practices.
In case of stopped payments, delinquent accounts or issues regarding customer's solvency brought to our attention after conclusion of a delivery contract, we reserve the right to withdraw from the contract or to require advance payment.
2. Delivery
a.) Unless expressly stated otherwise, delivery dates given in our order confirmation will be deemed approximate dates. We will meet these dates to the extent possible.
b.) Quantities on which charges are based are determined at the shipping plant/warehouse using officially calibrated scales. These quantities provide the basis for calculating charges and will be deemed binding for the customer.
c.) The product specifications are as specified by us, or, if not specified, as published by us. We provide no warranties or declarations, either explicitly or implicitly, with respect to the resellability, suitability for a specific purpose or in any other form.
d.) Customer will bear the risk of loss or damage to goods and packaging ex works: including for shipments made carriage paid/free-hauled. For returnable containers, customer's risk will cease upon arrival of returned containers at our plant.
e.) Operational disruptions, energy or raw material shortages, transport disruptions, shipping problems, instructions by higher authority and/or cases of force majeure, such as fire, explosion, strike, lockouts and/or any other events beyond our control will relieve us from our obligation to make delivery and entitle us to withdraw from the contract or any parts thereof without any liability on our part to make compensation for damages.
f.) Neither party shall be liable for delayed fulfilment or non-fulfilment of contractual obligations where these are due to circumstances lying outside the sphere of influence of the affected party, such as force majeure, flooding, hostilities, accident, explosion, operational interruption, labour dispute or the inability to obtain energy, utility service, transportation, the product to be supplied pursuant to the contract or the precursor product from which the product is directly or indirectly fabricated. Nor shall the parties be liable for delayed fulfilment or non-fulfilment of contractual obligations where they have been prevented from doing so through compliance with regulations, orders or demands of government authorities or persons claiming to be acting on behalf of such government authorities.
g.) Should the customer default on acceptance or culpably violate other duties of collaboration, we shall have the right to demand compensation for the loss accruing to us to the same extent, including any additional expenses. Further claims remain reserved. Where the aforementioned prerequisites exist, the risk of accidental loss or accidental deterioration of the purchased goods shall transfer to the contractual party as of the date as of which the latter is in default of acceptance or payment.
h.) Should we default on delivery, the Customer shall be obligated to set an appropriate grace period and may with draw from the contract if this expires without result. Following expiration of the grace period without result, the Customer may demand compensation for losses if default in delivery has already occurred. In the case of default in delivery not caused by us intentionally or through gross negligence, we shall be liable within the scope of a demonstrated default loss up to the maximum amount of 10 % of the delivery value. Proof of greater loss is not excluded
3. Product claims
Any claims and/or complaints concerning our products must be reported to us immediately upon receipt of the commodities and may only be raised as long as such commodities are still contained in the shipping containers in order to enable us to fully verify the justification of the claim/complaint. The costs of verification will only be borne by us if the complaint is proved justified.
If, in spite of all due care, the delivered merchandise contains a defect that existed already at the time of transfer of risk, we shall, with reservation of timely reporting of defects, remedy the defect or replace the merchandise at our discretion. An opportunity to remediate the defect within a reasonable period must always be granted us.
If remediation should be unsuccessful, the contractual party may with draw from the contract or reduce payment, without prejudice to any claims for damages.
Claims for defects shall become statute-barred after 12 months from transfer or acceptance of our merchandise.
4. Shipping containers
a.) Tank wagons
Within 24 hours after arrival, our tank wagons must be unloaded for immediate return to us, without damage and free of charge. Hire charges for tank wagons will be based on standard rates, starting on the day of providing the wagon until the day of return to our factory or the specified return station. We will assume no guarantees for full usage of the permissible loading weight.
b.) Barrels and cans
After unloading/emptying, barrels and cans must be returned to us as soon possible, (within 2 months at the latest) in clean and undamaged condition, freight and expenses prepaid, and marked with the original symbols and numbers. Delayed returns will be subject to charges for hire, with each new month started charged as a full month. Invoices for hire charges are payable immediately on receipt without any deductions.
The hire barrels provided by us remain our property. Customer may not use such containers for storage and/or further shipment of the commodities supplied nor any other products under any circumstances. Neither shall customer have a right of retention regarding the hire containers provided by us. In the event that customer should be unable to return the hire containers due to their documented loss, customer - in addition to the hire charges accrued thus far - will be subject to payment of the replacement costs.
5. Prices and payment
In the absence of any other agreement, all our prices are deemed quoted ex works exclusive of packaging and plus the respectively valid rate of value-added tax.
All payments will be due promptly after billing, net and without any charges or loss to us. The day of despatch ex factory will be decisive for billing purposes. In the event of late payment, none of our other legal and/or contractual rights withstanding, we will be entitled to immediately stop deliveries and/or cancel any remaining contractual quantities, without customer being entitled to bring forth a claim for damages. Late payments will be subject to charges of default interest, bank expenses, etc. at the same rates normally charged by the major German banks. The right to claim greater a default loss remains reserved.
The Customer shall only be entitled to offset claims when his counterclaims have been established as legally valid or are undisputed. The contractual party shall be entitled to exercise a right of retention only insofar as his counterclaim derives from the same contractual relationship.
6. Retention of title
Title to the commodities supplied will not pass to customer until all of our receivables pertaining thereto have been fully settled. This shall also apply for all future deliveries, even if we do not always expressly refer to this, in the amount of the invoice value of our claims plus 10 %. Customer will only be entitled to use the commodities to which we have retained title for normal business purposes: such commodities may not be pawned or pledged to any third parties nor be assigned as collateral. In the event of any third parties threatening to seize our property, customer will inform us thereof immediately and advise such third party of our title.
Any processing or alteration/modification of the commodities will be performed on our behalf without obligation to us. We will acquire proportional title to the new product based on the value of our commodity and the processing/modification value versus the value of the new product.
As guarantee and security, customer cedes to us at this time any receivables due from the resale of our commodities or our proportional title thereto.
7. Freights, customs duty, taxes, fees
In the event that during the term of the delivery agreement any taxes, customs duty or other fees should be levied on the raw materials required to produce the commodities sold or on the commodities themselves, or in the event that any incidental costs, such as customs duty, taxes, freights, etc. already included in the purchase price should be increased, we reserve the right to bill customer for such increases or to raise the purchase price accordingly.
The customer shall be liable to us for compliance with the customs and excise regulations applicable to him for the duration of the contract, in particular energy tax laws, as well as for obtaining and complying with the public permits required by law. If permits, particularly for preferential delivery with respect to excise and taxes, are not issued or are revoked, we shall have the right to increase the purchase price accordingly.
8. Place of performance
This contract and all legal relationships between the parties shall be subject to the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG).
To the extent legally permissible, the place of fulfilment and sole place of venue for all disputes arising out of this contract shall be our registered office in Cologne, insofar as nothing else is stated in the order confirmation.
To the extent legally permissible, the place of fulfilment and sole place of venue for all disputes arising out of this contract shall be our registered office in Cologne, insofar as nothing else is stated in the order confirmation.
9. Legal venue
Any disputes which may arise from delivery business transactions with us will be referred to and settled by the courts of Cologne, Germany.
C Ö L N E R B E N Z I N - R A F F I N E R I E
Vertriebs GmbH, Sitz Cologne, Handelsregister Amtsgericht Cologne HR - B 47971
As of 09/2011