General Terms and Conditions of Sale, Delivery and Payment
Clause 1 General applicability
(1) These General Terms and Conditions of Sale, Delivery and Payment are the only terms and conditions that apply in dealings between SYNVENTIVE and its customers; SYNVENTIVE will not recognise any contradictory or differing terms and conditions that the customer may have, unless SYNVENTIVE has expressly agreed to them in writing. These General Terms and Conditions of Sale, Delivery and Payment shall also apply if SYNVENTIVE effects delivery to the customer without reservation, despite knowing that the customer has contrary terms and conditions or terms and conditions that differ from these General Terms and Conditions of Sale, Delivery and Payment.
(2) Any amendments or additions to any term and/or provision of these Terms and Conditions of Delivery shall require an express written agreement and shall only apply to the individual contractual relationship that is affected.
(3) These Terms and Conditions of Delivery shall only apply in dealings with businesses within the meaning of section 310 (1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB).
Clause 2 Quotes and related documents
(1) Quotes or details from SYNVENTIVE concerning prices shall not be binding on SYNVENTIVE and shall merely serve as an invitation to place an order (invitation to treat).
(2) If the order qualifies as an offer in accordance with section 145 of the German Civil Code (BGB), SYNVENTIVE reserves the right to accept this offer within 2 weeks. A contract shall only be formed if SYNVENTIVE accepts the offer in writing or proceeds to execute the order.
(3) All dimensions, quantities, sizes, weights and/or every other description or specification of the products shall be specified by SYNVENTIVE with the greatest possible precision. However, SYNVENTIVE cannot guarantee that there will be no inconsistency in these details. Samples, drawings and models merely serve to illustrate the product in question. If the products supplied by SYNVENTIVE differ from SYNVENTIVE's specifications or samples, drawings or models to such a degree that the customer cannot reasonably be expected to accept such inconsistencies, the customer shall have the right to rescind the contract if the circumstances of the case make such a rescission a reasonable requirement.
(4) SYNVENTIVE reserves rights of ownership and copyright in respect of illustrations, drawings, calculations and other documents. This also applies to written documents that are described as "confidential". Unless SYNVENTIVE has given its express written consent, the customer may not copy nor duplicate these documents nor hand them over or make them known to third parties. However, at the customer's request SYNVENTIVE will provide instructions and drawings – with the exception of blue prints - to enable the customer to assemble, commission and use the product delivered. These items will then become the customer's property. The customer is free in the use of these documents, as long as SYNVENTIVE does not explicitly state that they are to be treated as confidential.
Clause 3 Prices and terms of payment
(1) If nothing else is stated in the acknowledgement of the order, the prices quoted by SYNVENTIVE apply "ex works" and do not include the cost of packaging, freight and postage. These will be charged separately. Orders where there is no express agreement concerning fixed prices will be charged for at the listed prices valid on the date of delivery. SYNVENTIVE, however, reserves the right to raise fixed prices that have been expressly agreed if unforeseen events and increases in the cost of materials and wages have unexpectedly led to higher manufacturing costs with retrospective effect. Anything to the contrary shall only apply if this has been expressly excluded.
(2) Statutory value added tax is not included in the prices quoted by SYNVENTIVE; it will be shown separately in the invoice at the statutory rate on the date that the invoice is issued. The same applies to customs duties, other taxes on consumption and other charges or taxes that are imposed or levied with regard to the products and the transport of the products.
(3) Down payments and prepayments shall not generally affect the price.
(4) If nothing else is stated in the acknowledgement of the order, the purchase price is payable net (without any deductions) in the currency shown in the invoice and within 30 days of the invoice date or within 8 days of the invoice date less a 2 % cash discount. All payments shall be made either to SYNVENTIVE directly or paid into a bank account specified by SYNVENTIVE – as SYNVENTIVE may choose. If payment is made directly to SYNVENTIVE, this must be a cash payment. The law regarding the consequences of late payment shall apply.
(5) In the case of late payment the customer must compensate SYNVENTIVE in full for the out-of-court costs of collection and the costs of collection incurred as a result of a court order. The out-of-court costs of collection to be borne by the customer shall amount to 15 % of the outstanding amount, but shall be at least € 250.00 plus value added tax. Anything different shall only apply if the customer can prove that SYNVENTIVE did not incur these out-of-court costs of collection or that they were in fact significantly lower than the flat rate.
(6) The customer shall only have a right of setoff if the counterclaims in question have been established by a final court judgment, are undisputed or have been recognised by SYNVENTIVE. Furthermore, the customer may only exercise a right of retention if the counterclaim in question is based on the same contractual relationship.
Clause 4 Delivery period
(1) The delivery period indicated by SYNVENTIVE shall not commence until all technical questions have been clarified. The delivery period shall be extended by a reasonable amount of time – even in the case of late delivery – if unforeseen hindrances occur which SYNVENTIVE was unable to prevent, despite exercising all reasonable care in the circumstances – regardless of whether such hindrances have occurred at the works of SYNVENTIVE or at the works of one of its suppliers. Such hindrances are interruptions to operations due to strikes and lockouts, hindrances of a technical nature, interventions by the authorities, energy supply problems, delays in the delivery of important raw materials and other materials. SYNVENTIVE will immediately notify the customer of such hindrances. The delivery period will also be extended by a reasonable amount of time, in as far as no special agreements have been made in this respect, if the customer orders modifications to be made to the contractual product after the contract has been formed.
(2) In order for SYNVENTIVE to fulfil its delivery obligations, the customer must properly perform his/her/its own duties and obligations in good time. We reserve the right to raise the defence of non-performance of the contract.
(3) If the customer delays in accepting the goods or culpably breaches any other duties to cooperate, SYNVENTIVE shall be entitled to demand compensation for the damage caused, including any additional expenses. SYNVENTIVE also reserves the right to assert further claims.
(4) If as far as the preconditions set out in paragraph (3) have been met, the risk of accidental destruction or the accidental deterioration of the contractual item shall pass to the customer as soon as the customer defaults in accepting the goods or in paying its debts.
(5) SYNVENTIVE shall be liable according to the statutory provisions if the delayed delivery is due to an intentional or negligent breach of contract on its part; any fault on the part of its representatives or vicarious agents shall be attributable to SYNVENTIVE. If the delayed delivery is not due to an intentional breach of contract on SYNVENTIVE's part, SYNVENTIVE's liability for damages shall be limited to the typical and foreseeable damage.
(6) SYNVENTIVE shall also be liable according to the statutory provisions if it has caused the delayed delivery due to a culpable breach of a fundamental contractual obligation; in this case, however SYNVENTIVE's liability for damages shall be limited to the typical, foreseeable damage.
(7) In the event of delayed delivery, SYNVENTIVE shall be liable for each full week of the delay, paying a lump-sum compensation of 3 % of the value of the consignment. However, this compensation shall be limited to 15 % of the value of the consignment.
(8) This shall not affect further statutory rights and claims that the customer may have.
Clause 5 Passage of risk and packaging costs
(1) If nothing else is stated in the acknowledgement of the order, delivery "ex works" is agreed.
(2) SYNVENTIVE will not accept the return of any transport packaging or any other packaging in the meaning of the Packaging Regulations (Verpackungsordnung), with the exception of pallets. The customer must ensure that the packaging is disposed of at its own expense.
(3) If the customer should so wish, SYNVENTIVE will take out transport insurance to cover the delivery; the cost of such insurance shall be borne by the customer.
Clause 6 Liability for defects
(1) If the customer asserts claims due to defects, the customer must properly comply with its obligation to examine the goods and report any defects in accordance with section 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
(2) If any item in the consignment is defective, the customer shall have a choice between the repair of the defect or the delivery of a new item that is free of defects. If the defect is repaired, SYNVENTIVE must bear all the necessary expenses in this connection, particularly the cost of transport, travelling expenses, the cost of manpower and the cost of materials, as long as these are not increased due to the item in question being moved to a place than the place of performance.
(3) If the attempt to repair the defect fails, the customer shall have the right to rescind the contract or demand a reduction in price, as the customer may choose.
(4) SYNVENTIVE shall be liable according to the statutory provisions if the customer claims damages due to an intentional act or gross negligence, including an intentional act or gross negligence on the part of SYNVENTIVE's representatives or vicarious agents. As long as SYNVENTIVE has not committed an intentional breach of contract, its liability for damages shall be limited to the typical, foreseeable damage.
(5) SYNVENTIVE shall be liable according to the statutory provisions if SYNVENTIVE has culpably breached a fundamental contractual obligation. In this case, however, SYNVENTIVE's liability for damages shall be limited to the typical, foreseeable damage.
(6) This shall not affect liability for death, personal injury or damage to health caused by a culpable act, nor mandatory liability under the Product Liability Act.
(7) In the absence of any contrary provision above, SYNVENTIVE's liability shall be excluded.
(8) The limitation period for claims due to defects is12 months, as from the date of the passage of risk.
(9) This shall not affect the limitation period in the case of a supplier recourse claim in accordance with sections 478 and 479 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The limitation period in this case shall be five years, as from the date that the defective item was delivered.
Clause 7 General liability
(1) All further liability for damages other than the liability provided for in clause 6 is excluded, irrespective of the legal nature of the claim that is being asserted. This particularly applies to claims for damages due to culpa in contrahendo, other breaches of duty or claims for compensation due to damage to property under the law of tort, in accordance with section 823 of the German Civil Code (BGB).
(2) In as far as claims for damages against SYNVENTIVE are excluded or limited, this also applies to the personal liability for damages of its employees, workers, staff, representatives, and vicarious agents.
Clause 8 Reservation of title
(1) SYNVENTIVE reserves title to the item delivered until all payments from the business relationship with the customer have been received. If SYNVENTIVE and the customer have agreed that the purchase price can be paid on the basis of cheque and bill transactions, the retention of title also applies until the customer honours the bill accepted by SYNVENTIVE and shall not expire on the crediting of the cheque received by SYNVENTIVE. If the customer is in breach of its contractual obligations, particularly by being late in remitting payment, SYNVENTIVE shall have the right to take back the delivered item. If SYNVENTIVE takes back the item in question, this shall not mean the rescission of the contract unless SYNVENTIVE has expressly declared this to be the case in writing. If SYNVENTIVE seizes the delivered item, this shall always mean the rescission of the contract. After taking back the delivered item SYNVENTIVE shall be entitled to sell it and to set off the proceeds against the customer's liabilities – less the reasonable costs of sale.
(2) The customer must treat the delivered item with care and has the particular obligation to insure it against fire, water and theft with adequate coverage at the replacement value. If any maintenance or inspection work should be necessary, the customer must perform such work in good time and at its own expense.
(3) If the goods are seized by third parties or in the case of any other third-party interventions, the customer must immediately notify SYNVENTIVE in writing so that SYNVENTIVE can take legal action in accordance with section 771 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO). If the third party is not able to reimburse SYNVENTIVE for the court and out-of-court costs of taking legal action in accordance with section 771 of the Code of Civil Procedure (ZPO), the customer shall compensate SYNVENTIVE for the loss incurred.
(4) The customer has the right to resell the delivered item in the ordinary course of business, but hereby assigns to SYNVENTIVE all claims against its buyers or against third parties from the resale, to the sum of the final invoice amount (including value added tax) of SYNVENTIVE's claim, regardless of whether the item has been resold without being processed or after being processed. The customer is authorised to collect the amounts in question, even after the assignment. This shall not affect SYNVENTIVE's right to collect these amounts itself. However, SYNVENTIVE promises not to collect these amounts as long as the customer complies with its payment obligations in respect of the proceeds from the sale, is not in default of payment and, in particular, has not filed for insolvency or suspended payments. However, if this is the case, SYNVENTIVE may demand that the customer reveals the assigned claims and the names of the debtors in question, provides all details necessary for the collection of the amounts in question, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
(5) The processing or alteration of the delivered item by the customer shall always be done on SYNVENTIVE's behalf. If the delivered item is processed together with other items that do not belong to SYNVENTIVE, SYNVENTIVE shall obtain co-ownership of the new item in the same ratio as that between the value of the item supplied by SYNVENTIVE (final invoice amount including value added tax) and the value of the other processed items at the time of processing. The new item produced as a result of processing is subject to the same terms and conditions as the item supplied by SYNVENTIVE subject to reservation of title.
(6) In order to secure SYNVENTIVE's claims against the customer, the customer also assigns to SYNVENTIVE its claims against a third party arising from the item supplied by SYNVENTIVE being attached to a plot of land.
(7) SYNVENTIVE undertakes to release the collateral provided for SYNVENTIVE at the customer's request, in as far as the realisable value of this collateral is more than 10 % in excess of the value of the claims to be secured. SYNVENTIVE shall decide which items of collateral to release.
Clause 9 Place of jurisdiction – place of performance
(1) If the customer deals as a business, the place of jurisdiction shall be the place where SYNVENTIVE has its principal place of business. However, SYNVENTIVE shall also have the right to bring an action against the customer before the court in the customer's place of residence.
(2) This contract is governed by the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods shall not apply.
(3) In the absence of any indication to the contrary in the acknowledgement of the order, the place of performance shall be the place where SYNVENTIVE has its principal place of business.
Issue 9 July 2009
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