GENERAL TERMS
Last update: 01.04.2022
§ 1 SCOPE
a) These terms and conditions shall apply to all – present and future – business relations with entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law concerning deliveries or other services including contracts for work and services and deliveries of goods.
b) Our General Terms and Conditions shall apply exclusively. Other terms and conditions – in particular the Purchaser’s terms and conditions of purchase – are expressly rejected now and in the future.
c) If, in a specific individual case, other agreements are made with the Buyer which take precedence over these General Terms and Conditions of Sale and Delivery, this shall require a contract or our express confirmation in text form.
§ 2 OFFER
a) Our offers are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. Orders shall only be binding on us if and to the extent that we have confirmed them in text form or have commenced with their execution. Verbal agreements, promises and guarantees made by our employees – with the exception of officers, authorized signatories and general representatives – in connection with the conclusion of the contract shall only become binding upon our confirmation in text form. Any waiver of this text form requirement shall also require text form.
b) Supplementary clauses to the description of goods such as “approximate”, “as already delivered” or similar additions in our offers refer exclusively to the quality or quantity of the goods, but not to the price. Such statements in orders of the Buyer shall be understood by us accordingly.
c) Our indications of quantity are approximate. In the case of delivery of loose goods or liquid substances in containers and/or tanks, especially in case of chemicals and petrochemicals, deviations of up to +/- 10 % of the agreed quantity shall be deemed to be in accordance with the contract – statements of an approximate quantity shall entitle us to a corresponding increase/decrease in quantity. Such quantity deviations reduce or increase the agreed purchase price accordingly.
§ 3 PRICE AND PAYMENT TERMS
a) The purchase price is due upon delivery of the goods, unless otherwise agreed in text form.
b) If the due date is exceeded, we may charge interest at a rate of 3 percentage points.
c) In the event of default, we shall charge default interest in the amount of 5 percentage points above the base interest rate as well as an additional lump sum in the amount of 60,00 Euro. We reserve the right to claim further damages.
d) The Buyer shall only be entitled to a right of retention and set-off to the extent that its counterclaims are undisputed or have been finally determined by a court of law, are based on the same contractual relationship with us or would entitle it to refuse performance pursuant to Section 320 of the German Civil Code (BGB).
e) If, after the conclusion of the contract, it becomes apparent that our claim for payment is jeopardized by the Buyer’s lack of ability to perform or if other circumstances arise which indicate a significant deterioration in the Buyer’s ability to perform, we may assert the rights under § 321 BGB. This shall also apply insofar as our obligation to perform is not yet due. In such cases, we may also declare due all claims not yet barred by the statute of limitations arising from the current business relationship with the Buyer. A lack of ability to perform on the part of the Buyer shall also be deemed to exist if the Buyer is at least three weeks in arrears with a not insignificant amount, furthermore in the event of a significant downgrading of the limit existing for him with our trade credit insurance.
§ 4 DELIVERY
a) The agreed delivery periods and dates shall always be deemed approximate unless a fixed date has been expressly agreed as such in text form. In the event of our delay in delivery, the limitation of liability in § 9 shall apply.
b) We shall be entitled to make partial deliveries to a reasonable extent. We shall also be entitled to reasonably exceed or fall short of the agreed delivery quantities within the meaning of § 2c.
c) In the case of deliveries which do not affect our business (drop shipments), the delivery date and time shall be deemed to have been complied with if the goods leave the place of delivery in such good time that the delivery reaches the recipient in good time given normal transport times.
d) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract for which we are not responsible. As such events make it significantly more difficult or impossible for us to deliver or perform and the impediment is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by making an immediate declaration to us in text form.
e) We shall not be liable in the event of impossibility or delay in the performance of delivery obligations if and to the extent that the impossibility or delay is due to circumstances for which the Purchaser is responsible, in particular the Purchaser’s failure to comply with obligations under public law, e.g. in connection with European Regulation (EC) No. 1907/2006 (REACH Regulation) or other legally binding obligations to submit an end-use declaration as amended from time to time.
f) Our delivery obligation is subject to correct and timely self-delivery, unless we are responsible for the incorrect or delayed self-delivery.
g) If the agreed prices are based on our list prices and the delivery is to be made more than three months after conclusion of the contract, our list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
§ 5 DISPATCH
a) Delivery shall be made in accordance with the commercial clause stipulated in the individual contract, the interpretation of which shall be governed by the INCOTERMS in the version applicable at the time of conclusion of the contract. The risks of transport from the place of delivery shall always be borne by the Buyer, even in the case of carriage paid delivery or free delivery.
b) If the Buyer collects the goods at the place of delivery, he or his representative shall load the vehicle and observe the statutory regulations, in particular for the transport of hazardous goods.
c) Unloading and storage of the goods shall in any case be the responsibility of the Buyer.
d) In the case of deliveries in tank trucks and demountable tanks, the Buyer shall ensure that its tanks or other storage containers are in perfect technical condition and shall arrange for the connection of the filling lines to its receiving system on its own responsibility and, if necessary, shall oblige the recipient accordingly. Our obligation is limited to the operation of the vehicle’s own facilities.
e) As our employees may assist with unloading or refueling in the cases of the above paragraphs b) to d), they shall act at the sole risk of the Purchaser and not as our vicarious agents. Costs arising from standing and waiting times shall be borne by the Buyer.
f) Storage costs after the passing of risk and in the event of default in acceptance shall be borne by the Buyer. After unsuccessful expiry of a reasonable period of time set for the Buyer for acceptance, we may dispose of the goods, the further use or resale of which is not possible, at the Buyer’s expense if the storage of the goods is not possible or not reasonable in our reasonable discretion due to their nature.
§ 6 RESERVATION OF TITLE
a) Ownership of the goods (reserved goods) shall not pass to the purchaser until the purchase price has been paid in full. All delivered goods shall remain our property (reserved goods) until all claims, also the respective balance claims to which we are entitled within the scope of the business relationship, have been settled (balance reservation). This shall also apply if payments are made on specially designated claims. The reservation of balance shall finally expire upon settlement of all claims still outstanding at the time of payment and covered by this reservation of balance. In the case of advance payments or cash transactions within the meaning of Section 142 of the German Insolvency Code, only the simple retention of title pursuant to sentence 1 shall apply; the balance retention shall not apply in these cases.
b) As long as the Buyer duly meets his obligations towards us, he shall be entitled to resell the reserved goods in the ordinary course of business subject to the proviso that his claims from the resale shall pass to us in accordance with e).
c) If the Buyer fails to meet his payment obligations even after setting a grace period, we shall be entitled to demand return of the reserved goods without setting a further grace period and without notice of rescission. For the sake of taking back the goods, we shall be entitled, if necessary, to enter the Buyer’s premises.
d) Any processing or treatment of the reserved goods shall be carried out on our behalf without any obligation on our part. We shall be deemed to be the manufacturer within the meaning of § 950 of the German Civil Code (BGB) and shall acquire ownership of the intermediate and finished products in the ratio of the invoice value of our goods subject to retention of title to the invoice values of third-party goods; the Buyer shall keep them in safe custody for us free of charge to this extent. The same shall apply in the event of combination or mixing within the meaning of §§ 947, 948 of the German Civil Code (BGB) of goods subject to retention of title with third-party goods.
e) The Buyer hereby assigns to us any claims against third parties arising from the resale of the goods subject to retention of title as security for all our claims. If the purchaser sells goods in which we have proportional ownership in accordance with letter d), he shall assign to us the claims against the third parties in the amount of the corresponding partial amount. If the Buyer uses the goods subject to retention of title within the scope of a contract for work and services or a similar contract, he shall assign the corresponding claim to us.
f) The buyer is authorized to collect the claims from a further use of the reserved goods in the ordinary course of business. If facts become known to us which indicate a substantial deterioration in the financial circumstances of the Buyer, the Buyer shall, at our request, notify his customers of the assignment, refrain from any disposal of the claims, provide us with all necessary information on the stock of the goods owned by us and the claims assigned to us and hand over the documents for assertion of the assigned claims. We shall be informed immediately of any seizure by third parties of the goods subject to retention of title and the assigned claims.
§ 7 LIABILITY OF MATERIALS
a) The internal and external quality of the goods owed shall be determined according to the agreed specifications, in the absence of such according to our product descriptions, markings and specifications, in the absence of such according to practice and trade usage. References to standards and similar regulations, information in safety data sheets, information on the usability of the goods as well as statements in advertising materials, declarations of conformity, certificates of analysis, test certificates or similar declarations do not constitute warranties or guarantees. Especially in case of chemical and petrochemical products, relevant identified uses according to the REACH Regulation (EC) No. 1907/2006 shall neither constitute an agreement on a corresponding contractual quality nor a presumed contractual use.
b) Insofar as we advise the purchaser verbally, in writing or by means of trials, this shall be done to the best of our knowledge, but without any liability on our part, and shall not release the purchaser from its own examination of the delivered goods as to their suitability for the intended processes and purposes.
c) The statutory provisions, e.g. § 377 of the German Commercial Code (HGB), shall apply to the inspection of the goods and the notification of defects, with the proviso that the Buyer shall notify us of defects in the goods in text form. If the goods are delivered in packages, he must additionally check the labeling of each individual package for conformity with the order. Furthermore, he shall satisfy himself of the contractual condition of the goods by taking a sample, as is customary in the trade, prior to refueling.
d) In the event of a justified and timely notice of defect, we may, at our discretion, remedy the defect or deliver defect-free goods (subsequent performance). In the event of failure or refusal of subsequent performance, the Buyer shall be entitled to the statutory rights. If the defect is not substantial and/or if the goods have already been sold, processed or transformed, he shall only be entitled to the right of reduction.
e) Further claims, in particular consequential harm caused by a defect, are excluded in accordance with § 8.
§ 8 LIMITATION OF LIABILITIES
a) We shall be liable for breach of contractual and non-contractual obligations, in particular for impossibility, delay, culpa in contrahendo and tort – including for our executive employees and other vicarious agents – only in cases of intent and gross negligence. In the absence of intent, our liability for damages shall be limited to the typical contractual damage foreseeable at the time of conclusion of the contract. Otherwise, our liability, including for consequential damages and lost profits, is excluded.
b) The limitations from § 9a) do not apply in the case of intentional and culpable violation of essential contractual obligations. Material contractual obligations are the obligation to deliver the goods on time and free of defects that impair their functionality or usability more than insignificantly, as well as advisory, protective and custodial obligations that are intended to protect the Buyer or its vicarious agents from significant damage. Furthermore, the limitations shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in the event of injury to life, limb or health and also not if and to the extent that we have fraudulently concealed defects in the item or guaranteed their absence. The rules on the burden of proof shall remain unaffected. The Buyer’s rights of recourse according to §§ 478, 479 BGB shall remain unaffected in any case.
c) If we are in default with a delivery or other service, the Buyer may demand compensation for the damage caused by the default in addition to the service, but in the case of slight negligence not more than 10% of the agreed price for the service in default. The Purchaser’s right to claim damages in lieu of performance in accordance with this § 9 shall remain unaffected.
d) Liability in the event of impossibility of delivery or delay in delivery shall be governed by the limits set out in § 4d) and § 4e).
e) Unless otherwise agreed, contractual claims to which the Buyer is entitled against us on the grounds of and in connection with the delivery of the goods and our other services shall become statute-barred one year after delivery of the goods. The statutory limitation period for our liability for intentional and grossly negligent breaches of duty, culpably caused damage to life, limb and health, as well as mandatory liability, e.g. under the Product Liability Act, shall remain unaffected.
§ 9 IMPORT & EXPORT REGULATIONS
The buyer is informed that the goods may be subject to export and import controls. Each contracting party is responsible for complying with the relevant export and import regulations.
§ 10 DATA PROTECTION
The provider collects and stores the data of the customer necessary for the business transaction. When processing the customer’s personal data, the provider observes the statutory provisions. Further details can be found in the privacy terms available on our website at https://samicon-services.com/privacy-terms/
The customer receives information about the personal data stored about him at any time upon request.
§ 11 CONFIDENTIALITY
Confidential information in the sense of this provision is all embodied or oral information and data, such as technical or business data, documents or knowledge as well as samples, which one of the two parties in connection with orders, offers, projects, also an offer or an inquiry of Samicon Services GmbH and already forwarded to the contractor prior to acceptance of the order. The parties undertake to use all confidential information exclusively within the scope of the execution of this order or project, not to make it accessible to third parties or to make it accessible only to those of their employees who need it within the scope of this order or project and who are obligated to maintain secrecy according to this agreement, unless they are already subject to a general obligation of secrecy due to their employment contract, and in this respect to maintain secrecy with the same care as with regard to their own information of comparable importance, but at least with reasonable care.
The obligation to maintain secrecy shall not apply to confidential information which is or becomes publicly available without either party being responsible for this. The obligation shall also not apply to confidential information which must be disclosed due to a binding official or court order or mandatory statutory provisions, provided that the contracting parties have been informed in writing in good time in advance of the respective disclosure and the parties have previously exhausted all legal possibilities to prevent the disclosure. Within three months after termination of the order or project, the Parties may demand from each other that confidential information in embodied and/or electronic form be returned or destroyed without delay. However, this only applies to such information that is not contained in the document provided by Samicon Services GmbH is handed over to the client. All information processed for the creation of the service package will be stored by Samicon Services GmbH within the scope of the statutory minimum retention period.
§ 12 DISPUTE
a) The exclusive place of jurisdiction for all disputes arising from the business relationship between us and the buyer is Hamburg, Germany. However, we can also sue the buyer at his place of business. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
b) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, as amended.
c) Should any of the above clauses be or become invalid, the invalid provisions shall be replaced by provisions which most closely approximate the economic purpose of the contract while reasonably safeguarding the interests of both parties.
§ 13 SCOPE OF AGREEMENT
Together with the Cookies Guideline and Privacy Terms, these General Terms build the entire agreement between Samicon Services GmbH and other contract parties and/or website visitors.
§ 14 UPDATE OF GENERAL TERMS
We will update the General Terms on occasion, most of the time to comply with new national and/or international regulations and guidelines. The mentioned date at the beginning of the General Terms shall indicate the last date of its modification. Furthermore, the latest version of the General Terms is considered as effective as soon as they are officially published, for instance on this website. As a result, contract partners and website visitors must always check the General Terms for new modifications. It is to be noted that the continuous use and visit of this website after the modification of the General Terms is considered as the indirect agreement and acceptance of the latest terms and conditions.
§ 15 CONTACT INFORMATION
This website is the property of Samicon Service GmbH and is operated directly by this entity.
For further information regarding the modifications in the General Terms and the latest version you can contact the following address:
Samicon Services GmbH
E-Mail: info@samicon-services.com
Post-Mail: Heselstücken 18, 22453 Hamburg, Germany
§ 16 DOWNLOAD
The latest valid version of our General Terms can be downloaded here