General Conditions of Sales and Deliveries
1. Extent of Validity
Any deliveries and performances shall be exclusively made according to the following conditions unless otherwise confirmed by Seller in writing. Conditions of purchase established by
Buyer are ineffective notwithstanding the fact that Seller will not expressly contradict or if orders are accepted without reservation.
Any invalidity of individual clauses will not affect the validity of the remaining provisions.
2. Offer and Order Confirmation
All offers are not binding.
The orders and their modifications or supplements as well as side agreements are binding not before and only in the extent to the written order confirmation of Seller.
Quotations of prices are not binding, and the invoices are made pursuant to the prices which are valid at the date of forwarding. The value added tax will be separately calculated.
The basis for the calculation of the delivered products is the quantity which is stated on leaving the suppliers’ plant.
Time of delivery is not binding.
Even time of delivery assured and confirmed as binding will be respectively extended in case of delayed deliveries as the result of force majeure as for instance wars, strikes, lockouts,
operating troubles, shortage of manpower and raw material, transportation hold-ups as well as governmental directives which will prevent or delay the production or transportation. If the
delivery is permanently made impossible by foresaid events Seller is authorized to repudiate the contract without any liability for damages.
Deliveries by installments are admitted and can be separately charged.
In case of multiple delivery contracts Seller may fix a reasonable deadline for the request or acceptance for the partial delivery and after its expiration terminate the contract and claim
damages for non performance in respect for the remaining quantity ordered.
If by fault of the Seller he does not keep a delivery time which was assured and confirmed in writing, Buyer shall be entitled to set a reasonable period of grace after the expiration of
the delivery time and to terminate the contract after the expiration of the period of grace. Claims for damages caused by undue delay shall be excluded. Insofar as products are
delivered from overseas “reasonable” shall be a period of grace of at least 8 weeks.
The risk of loss or damage in case of delivery not free of charge shall pass to Buyer when the product is handed over to the carrier or forwarder, in other cases, when the product is
handed over to Buyer.
Unless otherwise agreed upon, the invoices are instantly payable in the net amount on the date of invoice. A deduction of cash discount is always excluded if Buyer defaults on
payment towards Seller.
The surrender of promissary notes is only allowed on prior written consent of Seller and shall be accepted only as conditional payment what is also true in case of acceptance of
If Buyer defaults on payment or his credit standing becomes doubtful Seller is entitled to ask for immediate payment of all claims even if Seller had accepted promissary notes or had
grant a respite to Buyer in another way. Further he may cancel the agreed terms of payment and make future deliveries depending on payment.
Buyer shall pay interest of 8 percent points over the respective basic interest rate from the due date unless a higher damage is proved.
Buyer is not entitled to withhold payments or offset them against any counter claims unless the counter claim is undisputed or recognized by declaratory judgement.
Seller is entitled in the event of delay payment to rescind the contract after expiration of the deadline fixed for the payment, to take the goods delivered back and to claim for damage.
In the case of rescinding the contract Buyer shall compensate Seller not only for the loss of profit, the costs incurred and use made of the goods supplied, but also for any reduction
value for which he is not responsible and other damages Seller is suffering from the Buyer's failure to perform.
6. Retention of Title
The title to all goods delivered remains with Seller until Buyer has paid all and any claims arising from the business relationship with Seller. The retention of title remains even valid if
separate claims of Seller are included in a current account and the balance is stricken and accepted.
Material to which has retained the title shall be used for manufacturing on behalf of Seller being the manufacturer in the meaning of section 950 of the German Civil Code excluding
Buyer as owner and without Seller being under any obligation. Seller shall become joint owner of the new goods in the proportion of the invoice value of the goods with retained title to
the invoice value of the newly produced goods. Respectively the same is valid and effective in case of mixing up.
Buyer holds the retained property in custody for Seller free of charge and undertakes to insure it against the normal risks, such as but not limited to fire, water, theft etc. Buyer may sell,
use for manufacture, mix or combine the goods with retained title only in the course of his ordinary business and only as long as he is not in default of payment; he is not entitled to
otherwise dispose of the goods to which the title has been retained, especially not to pledging and assignment by bill of sales as a security. The power of disposition shall end if Buyer
stops payments, applies for a moratorium, bankruptcy proceedings, judicial or extra judicial composition proceedings or is in the danger of becoming insolvent and further on any-timerevocation
If Buyer resales the goods, with title retained he already herewith assigns his claims arising from the resale together with all subsidiary rights to Seller until the completion of all claims
arising form the business relationship. He undertakes to give Seller all information and documents necessary for the pursuing of Seller’s rights against Buyer’s customers. In case of
levies of execution or seizure attachments by third party Buyer shall promptly inform Seller. Buyer shall bear costs caused by Seller’s intervention.
The Seller is obliged to release at the request of Buyer or a third party which is impaired by Seller's exceeding securities, as far as their value exceeds the claim to be secured by more
than 10 %.
As far as the respective national law, where the goods are in custody of the Buyer, requires further steps for the validity of the retention of title, for example, the registration with a
registry, Buyer has to perform them on his costs and has to deliver prove about this to Seller. In any case, Buyer shall give Seller the opportunity to verify his claim.
Immediately after receipt Buyer shall examine the goods for defects in quality or errors in quantity and shall give written claim pointing out the order data, invoice- and lot number. Other
defects must be noticed to Seller in written from and immediately when they become visible. Otherwise, the goods delivered are treated as approved by the Buyer. In any case, Buyer
shall give Seller the opportunity to verify his claim.
If the notice of defects is justified Seller undertakes at his option to replace the goods or to take them back against reimbursement of the purchase price.
Any advice in the mode of application is not binding to Seller and shall not free Buyer of examining the goods of their suitability for the proceedings and technics intended by him or his
customers. All and any claims for damage against Buyer based on his advice in the mode of application shall be excluded.
Assurance of properties shall be valid only if it is confirmed by Seller in the written order confirmation.
Buyer shall have no further claims and in particular shall not be entitled to compensation for loss and damage other than the loss or damage of the goods supplied, except in the case
of intent and gross negligence of Seller's management or vicarious agents.
Buyer’s claims for defective products shall expire 1 year after delivery.
8. Jurisdiction and Governing Law, Place of fulfillment
Place of fulfillment is Düsseldorf. Place of jurisdiction is Düsseldorf or at Seller’s opinion the domicile of the Buyer.
The contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany with the exclusion of the rules of conflict of laws of the German
Private International Law. The application of the UN-Convention on International Sales of Goods of April 11, 1980 is excluded.
Mitsubishi Chemical Europe GmbH