General Terms and Conditions for Contracts with Entrepreneurs

 § 1 General 

(1) The following General Terms and Conditions (GTC) apply to all contracts, deliveries and other services of Arkem Chemicals GmbH, Carl-Zeiss-Str. 32, 47445 Moers, exclusively. It expressly does not apply to consumers within the meaning of § 13 of the German Civil Code (BGB). We do not recognise conflicting or deviating conditions of the customer unless we have agreed to their validity in writing. The following GTC shall also apply if we perform the contractually owed service without reservation in the knowledge of conflicting or deviating conditions of the customer. Deviations from these GTC require our written consent to become effective, unless the deviation is in an individual agreement. 

(2) The GTC shall also apply to all future transactions with the customer without the need for an express agreement. 

 § 2 Contract conclusion; scope and content of the services 

(1) Unless otherwise agreed, our offers are subject to confirmation. The prices are net ex works or ex warehouse. Orders placed by the customer shall only become binding upon our written order confirmation, and only to the extent confirmed. 

(2) We are entitled to demand the purchase price as well as the shipping and packaging costs by advance payment. The payment claims arising from the concluded contract are due for payment immediately and must be settled no later than 30 days after the invoice date. Payments are to be made without deduction. We do not grant discounts. In the event of default in payment, we shall charge default interest in the amount of 9 percentage points above the respective base interest rate, unless we can prove higher damages. Expenses of any kind whatsoever shall be borne by the buyer. 

(3) Subsequent changes or additional agreements of any kind require our written confirmation to become effective. 

 § 3 Terms and conditions of delivery and service; ADSp; retention of title 

(1) Our delivery deadlines are indicated with due care but are non-binding. In the absence of any written agreement to the contrary, our written order confirmation shall be authoritative for delivery. The defence of unperformed contract and the defence of uncertainty according to § 321 BGB remain reserved. 

(2) The delivery shall be carried out in accordance with the agreement reached with the customer and the risk shall be transferred in accordance with the currently valid version of the Incoterms. 

(3) All force majeure events for which we are not responsible in accordance with § 276 BGB – such as unforeseen operational disruptions, abnormal sick leave, strikes, lockouts, failure to deliver the required products in spite of a proper and timely order – shall release us from the fulfilment of our contractual obligations for as long as these events continue; delivery deadlines shall be extended accordingly. We are obliged to inform the customer immediately if such an event occurs; at the same time, we are required to notify the customer of how long such an event is expected to last. If such an event lasts longer than three months, we may withdraw from the contract. The consideration will be refunded immediately. Compensation for late delivery is excluded in these cases. 

(4) If there is a delay in performance which is not due to an intentional breach of contract for which we are responsible, the liability for damages shall be limited to the foreseeable, typically occurring damage. Insofar as the delay in performance is due to a culpable breach of an essential contractual obligation for which we are responsible, we shall be liable in accordance with the statutory provisions; in this case, too, the liability for damages shall be limited to the foreseeable, typically occurring damages. 

(5) The customer is entitled to withdraw from the contract if a grace period of four weeks they have set has expired fruitlessly. 

(6) If, in connection with orders, forwarding services and/or transport orders are to be performed for the customer, the latest version of the German Freight Forwarders’ Standard Terms and Conditions (ADSp) shall apply, unless otherwise agreed in writing. 

(7) We reserve the right to the retention of title to delivered items until the invoice has been settled in full. Until this time, the items may not be pledged, transferred by way of security or encumbered with other rights. The customer is obliged to treat the item with care as long as ownership has not yet passed to them. If the customer resells goods which are still our property, they hereby assign to us by way of security their future claims against their customers arising from the resale without any further declaration being required. If the customer resells the goods together with other items, they shall assign to us that part of the total claim which corresponds to the invoiced price (including value added tax) of our goods. The customer is nevertheless entitled to collect their claim. 

§ 4 Warranty; duty to notify defects; duty to notify transport damage 

(1) The warranty for defects shall be governed by the statutory provisions. If the customer is an entrepreneur, their claims for defects shall expire after one year. 

(2) In the event of a defect, we shall be entitled to choose whether to remedy the defect or to deliver a new product within a reasonable period of time. 

(3) The customer is obliged to inspect the goods for obvious and recognisable defects upon receipt. Insofar as this inspection reveals defects, the customer shall be obliged, in order to safeguard their claims for defects, to issue a written complaint without delay, i.e. within 48 hours, and to give us the opportunity to establish the facts. Reference is made to § 377 of the German Commercial Code (HGB); for the avoidance of doubt, this does not apply if the customer is a consumer within the meaning of § 13 BGB. 

(4) If goods are delivered with obvious damage to the packaging or contents, the customer must complain about this immediately to the carrier/freight service, without prejudice to their warranty rights, and contact us immediately by email or by other means (fax/mail) so that we can safeguard any rights against the carrier/freight service. 

(5) The customer cannot subsequently claim for damages or defects that could have been detected by an immediate inspection of the delivered products or if these were not immediately reported to the supplier. 

§ 5 Liability 

(1) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence or if we culpably violate a material contractual obligation; intentional or grossly negligent acts of representatives or vicarious agents are included herein. Insofar as we are not accused of an intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage. 

(2) If we are not responsible for the transport, we shall only be liable up to the point of loading, unless this has been carried out by the customer or a third party commissioned by the customer. 

(3) Unless otherwise stipulated above, liability is excluded – except in the case of culpable injury to life, limb or health – irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage in accordance with § 823 BGB. 

(4) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of employees, workers, staff, representatives and vicarious agents. 

§ 6 Place of jurisdiction; final provisions; non-binding nature of the translation 

(1) If our contractual partner is a fully qualified merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Moers shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same shall apply if our contractual partner does not have a general place of jurisdiction in Germany or if this is unknown at the time the action is brought. Notwithstanding the foregoing, we shall also be entitled to assert claims against our contractual partners at any other competent court. Unless otherwise agreed, the place of performance for all deliveries by the contractor shall be Moers. 

(2) The aforementioned terms and conditions and the entire legal relationship between us and the respective contractual partner – including the interpretation and fulfilment of these terms and conditions – as well as any legal disputes shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG Convention). Insofar as the law of the Federal Republic of Germany refers to the law of another state or to international law, e.g. to the aforementioned UN Convention on Contracts for the International Sale of Goods (CISG Convention), this reference is expressly waived. 

(3) In the case of declarations made in several languages, the German declaration shall prevail in case of doubt. These GTC apply exclusively in their German language version. Non-German versions are merely non-binding translations. 

(4) Should individual contractual provisions, including these GTC, be or become invalid in whole or in part, the remainder of the contract shall remain valid. The contracting parties shall be obliged to close any contractual gap that may arise by an agreement that comes as close as possible to the contractual purpose and economic success pursued by the invalid provision. 

Dated: February 2023

English GTC PDF download

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