General Terms and Conditions of Sale
1. Scope of application
1.1 These T&Cs govern the sale of products and the delivery of services by Koch‑Chemie GmbH to customers. By placing an order with Koch‑Chemie GmbH, the customer thereby agrees to the use of these T&Cs.
1.2 Koch‑Chemie GmbH is hereinafter denoted as KCU.
1.3 KCU deliveries, services and offers shall take place exclusively on the basis of these general terms and conditions. All orders are accepted and completed solely in accordance with these conditions. KCU is not obliged by any customer purchase conditions even if they do not recontradict at the conclusion of the contract. This also applies in the event that KCU completes delivery or accepts payment of purchase price in knowledge of any conflicting conditions.
1.4 Verbal agreements or changes to these conditions always require written agreement before coming into effect. This also applies to the amendment of this clause.
2. Offers and acceptance / contract conclusion / resale
2.1 All offers are subject to change by KCU in terms of price, quantity, technical information, delivery time and delivery options.
2.2 A contract is concluded only by written order confirmation by KCU or by delivery of goods.
2.3 Agreements with KCU that deviate from the offers must be struck in writing with the head office in Unna and exclusively with authorised employees. Only those employees with special authority or those who appear on the commercial register are considered as authorised. Our sales representatives are not authorised to make binding agreements.
2.4 Our products are sold on the basis of own use by customers. Commercial resale is only permitted upon prior agreement subject to our supplementary conditions for resellers.
3. Purchase price and payment
3.1 Prices are exclusive of value-added tax, taking into account the respective delivery location.
3.2 Invoices are payable immediately. Cash payment or prepayment are agreed.
3.3 KCU may reject cheques of any kind as well as bills of exchange. If they are accepted, this is done on account of payment. Discount and bill charges shall be at the expense of the customer and are due immediately.
3.4 Enforcement of warranty claims does not entitle customers to retain the purchase price either in whole or in part.
3.5 If the payment period in accordance with 3.2 is not adhered to, the customer shall be considered in default even without a warning and must pay default interest amounting to the statutory default interest rate.
3.6 Compensating customers is only possible in written acknowledged, undisputed or legally precedented circumstances and is limited to claims that result from the underlying contract.
3.7 Should a customer fail to meet their payment obligations, in particular by ceasing their payments or if a cheque or bill of exchange is not honoured or if KCU becomes aware of other circumstances which bring the customer’s credit worthiness into question, KCU is entitled to declare the entire residual debt payable even if cheques or bills of exchange have been accepted. KCU is also entitled to claim advance payments and sureties. Furthermore, KCU may completely or partially suspend or refuse to make further deliveries - not just under the relevant contract, but also under others - and require immediate cash payment for all deliveries.
4. Delivery
4.1 Deliveries are made at the prices valid on the day of goods handover plus the cost of goods transfer from transport (including customs duties) plus any statutory receivables. Delivery surcharges, demurrages and cartages etc. are borne by the customer. In addition, the conditions of delivery shall be ‘free carrier’ (FCA) in accordance with Incoterms 2010. Unna is the named location. For consumers, franking is generally not free.
4.2 The determined weight or volume or the determined number of units is the reference sale size.
4.3 The agreed delivery periods and dates are always approximate, unless a specific deadline is explicitly agreed as such in writing.
4.4 For all deliveries including those which do not affect KCU business, the delivery date and period are complied with if the goods left the supplier plant on time, such that the delivery would reach the recipient on time with normal transport times.
4.5 If the customer picks up the goods at the point of delivery, he or his representative must load the vehicle and observe the legal requirements, in particular those concerning the transport of dangerous goods.
4.6 In any event, the loading and storage of the goods are the customer’s responsibility.
5. Risk transfer and acts of nature
5.1 The risks of transport from the delivery facility are always borne by the customer.
5.2 Any risk of loss or deterioration of the goods sold is transferred to the customer as soon as KCU has transferred the goods to the person responsible for handling the consignment but no later than leaving the factory or warehouse except where KCU is responsible for the damage.
5.3 Acts of nature, in particular strikes and lockouts entitle KCU to withdraw from the contract. Indemnification due to breach of duty is excluded in this case. This also applies to self-delivery by upstream suppliers that is not done in a timely manner and that was not the fault of KCU. KCU is obliged to inform customers of such events immediately.
6. Packaging
6.1 If KCU delivers in rented containers, they must be returned to KCU empty, cleaned and in perfect condition within 90 days at the latest of the customer receiving them and the customer shall bear the risk of doing so. Other containers and/or packaging must be disposed of professionally by the customer. Private customer-compliant products in Germany must be disposed of by private consumers via the dual system in accordance with packaging regulation. For foreign deliveries however, rented containers are not used for delivery and all packaging/containers must be disposed of professionally by the customer.
6.2 Should the customer fail to meet the obligation listed under 6.1 in a timely fashion regarding the returning of rented containers, KCU shall be entitled to charge an appropriate fee for the time exceeding 30 days and to demand payment of the replacement price after the deadline has not been met taking into account the aforementioned fee.
6.3 Labels affixed to packaging may not be removed. Rented packaging may not be interchanged or refilled. The customer shall bear the risk of depreciation, change and loss. KCU findings shall be definitive. The use of rented containers as storage containers or their transfer to third parties is impermissible unless this has been agreed in advance in writing.
6.4 For deliveries to foreign addresses, the return obligation regarding KCU outer packaging is not applicable. Furthermore, the German packaging regulation does not apply to foreign deliveries.
7. Retention of title
7.1 Ownership of goods is only transferred following complete payment of the purchase price by the customer. For open accounts, the reserved title applies as security for the balance claim.
7.2 If the goods are resold or reprocessed, the resulting purchase price or wage claim is due to KCU from the moment of its incurrence up to the amount of the total claim by KCU. The customer shall then assign the future purchase price or wage claim to KCU. If the value of the collateral in place for KCU exceeds the receivables by more than 20%, KCU is obliged to release the excessive collateral if requested by the customer.
7.3 The customer is authorised to collect claims from further use of the retained goods in the ordinary course of business. If KCU becomes aware of facts that indicate a significant deterioration of the customer’s financial situation or if the customer finds himself in default, the customer must, at the request of KCU, notify their customers of the assignment, abstain from any disposals of the claims, give KCU all necessary information on the status of the goods in their ownership and the claims assigned to KCU, and hand over the documents to assert the assigned claims. KCU must be notified immediately of any access by third parties to the retained goods and the assigned claims.
7.4 If the customer does not fulfil their payment obligations, even after the setting of a grace period, KCU is entitled to demand surrender of the retained goods without setting a further grace period and without notice of withdrawal.
7.5 For the purposes of redemption in accordance with the above condition, KCU is entitled to enter the customer’s premises to which he hereby agrees.
8. Material defect, supplementary performance and duty to inspection and objection in accordance with section 377 of the German Commercial Code (HGB)
8.1 The guaranteed internal and external features of the goods are determined by the agreed specifications or, in the absence of such, by the KCU product descriptions, labels and specifications or, in the absence of such, by practice and custom. References to standards and similar regulations. Information on safety data sheets, information on the usability of goods and statements in advertising materials are not assurances or guarantees, nor are they declarations of conformity. In particular, relevant identified uses in accordance with the REACH Regulation (EC) 1907/2006 represent neither an agreement of an appropriate contractual nature nor a contractually required use. Samples are always non-binding sample versions. Analytical information is also approximate in terms of maximum and minimum limits. Colour, odour and viscosity variations that do not impair other properties do not represent material defects.
8.2 The application-specific advice given by KCU or by its commissioned salespersons and representatives, consumption details, instructions for use etc. are non-binding and form no contractual legal relationship or secondary obligations and thus KCU is not liable for such activity. The consultation does not relieve the customer of their own testing of KCU products for suitability against the intended purposes nor from observing the KCU processing recommendations.
8.3 Legal provisions, in particular section 377 HGB, apply for the inspection of the goods and the reporting of defects, with the proviso that the customer must inform KCU of goods defects in writing. In particular, the customer must conduct an incoming inspection in the form of a visual inspection of obvious defects, transport damage, quantity deviations and identity of the goods and then notify KCU of any recognised defects immediately. If defects are recognised later, KCU must be notified of these immediately as well and in writing. If the goods are delivered in packages, the customer must also examine the labelling of each individual package to check that it corresponds with the order.
8.4 In the event of legitimate, timely defect claims, KCU can rectify the defect or deliver a defect-free object (supplementary performance), at their discretion. In the event that supplementary performance fails twice or is refused, the customer is entitled to statutory rights. If the defect is minor and/or if the goods have already been sold, processed or altered, the customer shall only be entitled to the right to reduce the purchase price.
8.5. In the event of improper use, storage, operation, negligent or faulty maintenance, overuse or improper repair by an unauthorised service partner, no warranty can be assumed for chemicals, machines or fixtures.
9. Scope of liability for material defects, defect claims and forfeiture
9.1 Liability for material defects lasts 12 months starting from delivery to the customer.
9.2 Claims for damages due to material defects asserted by the customer are excluded.
9.3 The liability limitations in accordance with paragraphs 9.1 and 9.2 do not apply to customer claims for damages that result from injury to life, limb or health if KCU is responsible for the breach of duty. They also do not apply for customer claims due to other damages that rest upon deliberate or grossly negligent breaches of duty by KCU, its legal representatives or vicarious agents; nor do they apply for claims resulting from product liability.
9.4 The statute of limitation of section 479 of the German Civil Code (BGB) remains unaffected by the regulation in paragraph 9.1.
9.5 Defect claims must be submitted in writing. Written defect claims do not prevent the expiry of the warranty period.
9.6 The right to enforce claims due to material defects is forfeited before the end of the liability period for material defects in the event that a customer fails to further pursue his claim in writing within a month following written rejection of the material defect liability by KCU.
9.7. Clause 10 shall apply.
10. General limitation of liability und statute of limitations
10.1 For injury to life, limb or health as well as claims resulting from product liability law, KCU is liable within the scope of the legal regulations.
10.2 Otherwise, KCU shall only be liable for other damages insofar as its legal representatives or vicarious agents are guilty of intent or gross negligence. In addition, KCU is also liable in cases of slight negligence in the event of explicit transfer of guarantee and in the event of a breach against significant contractual obligations upon whose fulfilment the customer may particularly rely on.
10.3 In the event of slightly negligent breaches against significant contractual obligations as well as in the event of gross negligence by non-managerial vicarious agents, KCU is only liable in the amount of the typically foreseeable damage.
10.4 Otherwise, KCU has no liability for cases of slight negligence regardless of the legal reason.
10.5 Liability for consequential damages such as loss of profit, missed savings and other indirect damages is excluded unless it endangers the purpose of the contract.
10.6 If, in accordance with paragraphs 10.4 or 10.5, compensation must be paid anyway, the maximum amount of the claim shall be the purchase price attributable to the quantity of the goods sold.
10.7 The above liability limitations also apply to KCU employees.
11. Rented equipment
If KCU lends equipment, machines, fixtures or dispensing technology to customers, KCU is entitled to demand the return of these at any time as well as to pick them up themselves. This also applies if the equipment or machines are coupled to water connections, dowelled to brickwork or otherwise similarly connected to a building. In the event of loss or damage due to improper use, the piece of equipment may be charged by KCU at the customary new price. Should a defect arise with the hired equipment, the customer has no claim to the assignment of additional equipment. The customer shall bear the costs of replacement of expendable parts and seals as well as any maintenance and/or cleaning costs.
12. Legal jurisdiction, applicable law, severability clause
12.1 Unna shall act as the legal jurisdiction or, at the choice of KCU, the customer’s head office.
12.2 The law of the Federal Republic of Germany applies excluding the conflict of law rules of international private law as well as UN sales law (CISG).
12.3 If a provision or part of a provision of these conditions is ineffective, this shall in no way affect the efficacy of the remaining provisions. The ineffective provision shall be replaced by a regulation that comes as close in content to the ineffective provision as possible.
13. Amendments to the T&Cs
13.1 KCU reserves the right to make changes to the T&Cs in future at any time.
13.2 The use of the new T&Cs shall be deemed as agreed upon between the parties if the customer does not reject them in writing within six weeks of receiving them.
13.3 The T&Cs that were agreed between the parties at the time the order was received apply.
Last Updated: 22nd of January 2018