General Business Conditions

I. General

(1) All legal relations with Münch Chemie International GmbH, Weinheim – hereinafter called Münch – shall be governed by these General Terms & Conditions. This shall also apply to any future quotations, deliveries and services. The customer shall also be subject to the following conditions in the case of instructions given at short notice which are not confirmed as separate contracts.

(2) Any terms opposing or conflicting the General Terms & Conditions of Münch, or claiming to restrict, overrule or invalidate the General Terms & Conditions of Münch, shall not form part of the contract unless their validity is expressly acknowledged in writing by Münch. The customer shall expressly acknowledge the exclusive applicability of these General Terms & Conditions on entering into any given contract with Münch.

This effectively amounts to a rejection of any differing conditions of purchase or other general terms of business set forth by any given customer. This objection shall still apply even if Münch does not reiterate its rejection on receipt of any conditions of purchase or general terms of business.
 
(3) In case of doubt, the General Terms & Conditions of Münch shall be deemed to have been agreed on receipt and acceptance of the goods or services provided by Münch under the contract in any given case.

(4) Any verbal undertakings, supplementary agreements or similar arrangements must be specifically confirmed in writing by Münch to have binding force.


II. Conclusion of contract

(1) Any information given in price lists, advertising brochures, technical specifications or similar documents and any quotations shall be subject to confirmation by Münch.

(2) The contract between Münch and the customer shall enter into effect, duly incorporating the General Terms & Conditions of Münch, in the following ways:

a) Through the customer's unconditional acceptance of the quotation made by Münch;

b) In the case of a purchase order by the customer (submission by customer), through Münch's written declaration of acceptance, which can be issued within two weeks of receipt of the customer's submission either in writing or by implication through the delivery of the goods to the customer, or

c) Through provision of the offered or ordered goods or services by Münch and their unconditional acceptance by the customer.

(3) Münch shall be entitled to refuse purchase orders with a net value of less than € 100.00; in case of goods with a net value of between € 100.01 and € 249.99 Münch shall be entitled to add a minimum quantity surcharge of € 50.00 plus statutory value added tax at the applicable rate.

III. Documents

We reserve title and proprietary rights to all documents submitted to the customer in connection with the placing of orders, such as costings, drawings, etc. These documents must not be made accessible to third parties unless we give the customer our express written permission to this end. These documents must be returned to us immediately if we do not accept the customer's submission within the period specified in section 2.

IV. Prices, export certificates and payment

(1) Unless agreed otherwise, the prices specified by Münch are quoted ex works plus domestic or foreign value added tax at the applicable statutory rate. Münch will charge the prices set out in the price list that is valid at the time of entering into the contract for the goods or services, plus a minimum quantity surcharge where applicable (II. para. 3).

(2) The prices contained in price lists do not include the statutory value added tax and, where applicable, the freight charges. Unless agreed in writing to the contrary, our prices are quoted ex works plus value added tax at the applicable rate in any given case. Packaging costs will be charged separately.

(3) The customer will be invoiced separately for customs duties, consulate charges, freight charges, insurance premiums, packaging costs and other costs incurred in connection with the execution of the contract. If, by way of derogation from the above, it has been agreed that such costs are to be included in the price, then the customer will be invoiced for any increase in costs ensuing after completion of the contract.

(4) In the case of deliveries and services within the EU, the customer shall be required to provide Münch, prior to the processing of a purchase order, with its value added tax reference number under which it processes the sales tax within the EU. If a customer domiciled outside the Federal Republic of Germany collects the goods or has them collected by an authorised agent and transports or sends said goods to countries outside the EU, the customer shall be required to provide Münch with a valid export certificate conforming to the requirements of the sales tax law in the Federal Republic of Germany. If this certificate is not submitted within 30 days of the handover of the goods, the customer shall be required to pay the value added tax on the invoice amount at the rate applicable to deliveries within the Federal Republic of Germany.

(5) The invoices issued by Münch are payable strictly net within 30 days of the invoice date. Different terms of payment must be the subject of a separate agreement. The value date on one of the accounts held by Münch shall determine whether a payment has been made on time.

(6) Bills of exchange and cheques will only be accepted as payment if this has been agreed specifically and in writing. The customer shall bear all the costs incurred by the acceptance of bills of exchange or cheques by way of exception (bill stamp duty, discount charges, etc.).

(7) Münch shall be entitled to check the credit standing of customers by the usual means. Should doubts arise as to the credit standing of the customer, or should there be a major deterioration in the financial circumstances of the business partner, then Münch shall be entitled to revoke terms of payment already granted and to demand advance payment or cash on delivery in respect of all further deliveries. Any terms of payment granted shall lapse and all claims of Münch shall become due immediately if the business partner fails to honour or rejects cheques or direct debits based on direct debit authorisation granted to Münch due to insufficient funds, and if the business partner files for bankruptcy or the opening of insolvency proceedings is requested; in such cases Münch shall be entitled to retrieve goods already supplied by way of security.

V. Delivery

(1) Münch shall be entitled to make part deliveries and to render partial performance at any time.

(2) Delivery dates and lead times shall only be binding if specifically acknowledged and agreed in writing. Agreed lead times shall begin on the date of our order confirmation but not before full clarification of all the necessary details and technical issues relating to the order. The same shall apply to delivery dates.

(3) Unless agreed otherwise, the customer shall be required to take delivery of call-off orders within four weeks of the date of our order confirmation or within a four-week period according to the agreed release order dates.

(4) If the customer fails to fulfil contractual duties in due time, including duties of cooperation and collateral duties (e.g. issuing a letter of credit, providing national or international attestations, making advance payments, etc.), we shall be entitled, without prejudice to our rights ensuing from the default of the customer, to extend our lead times or postpone our delivery dates in due proportion according to our operational requirements and production sequences. Instances of force majeure or other circumstances beyond our control affecting us or one of our suppliers, such as strikes, lockout, official directives, etc., and leading to delays in delivery shall release us from the obligation to fulfil the contract on the due date for such time as the circumstances persist.

VI. Performance

(1) Deliveries and services will be provided at the place of performance, unless agreed otherwise in writing.

(2) If the goods are sent to the customer at the latter's request, the risk of accidental perishing or accidental deterioration of the goods or the risk of damage to the goods or services shall pass to the customer not later than the point in time of leaving the factory/warehouse and the point in time of handover of the goods or services to the forwarding company. This shall apply irrespective of whether the goods are sent from the place of performance and irrespective of who pays the freight charges.

(3) Münch shall be at liberty to select the forwarding company and the manner and method of packaging and dispatch, and shall exercise its own discretion in making the selection. Münch shall be liable in respect of the selection of the forwarding company and in respect of the manner and method of packaging and dispatch only in case of deliberate intent and gross negligence.

VII. Delivery time

(1) The beginning of the delivery time specified by Münch presupposes the due and proper fulfilment of the duties of the customer, reserving the defence of non-performance of contract.

(2) Delivery times will only be binding if specifically acknowledged and agreed as such in writing. The delivery deadline shall be deemed to have been met if Münch hands over the goods or services to the customer or to the forwarding company (III.4.) within the specified time period.

(3) If Münch is only able to render partial performance or partial delivery, an agreed delivery deadline shall be deemed to have been met if the instalments or items are handed over to the forwarding company or to the customer within the specified time period (III.4.) and the delivery of the remaining goods or services follows immediately.

(4) The liability of Münch shall be limited to deliberate intent and gross negligence and, by way of a maximum value, to the amount which the customer would have to pay Münch for the delayed delivery of goods or services.

(5) If the customer falls behind with acceptance obligations or neglect other duties of cooperation, Münch shall be entitled to claim compensation for the damages incurred in this respect, including any additional expenses, also reserving the right to make further claims. Insofar as the above situation applies, the risk of accidental perishing or accidental deterioration of the purchased goods shall pass to the customer at the time at which the latter defaulted on acceptance or performance.

(6) This shall not affect the further statutory entitlements and rights of the customer in case of default in delivery.


VIII. Packaging and freight insurance

(1) The goods or services will be packaged as required at the discretion of Münch.

(2) Münch shall be under no obligation to take out insurance cover for the goods or services in transit. If it is agreed that cover must be taken out for the goods or services, then the customer shall bear the costs of this insurance.

(3) The packaging supplied with the products may not be returned to Münch; the customer hereby releases Münch from any conflicting statutory requirements in this regard.

(4) Insofar as the packaging or even the goods or services themselves have to be disposed of in accordance with statutory regulations, the customer shall assume this obligation as relative to Münch and shall release Münch from all obligations in this regard.

IX. Set-off

The customer of Münch may only offset claims against such as are undisputed or recognised by declaratory judgement.

X. Warranty and liability

(1) Information in brochures, quotations, advertisements, technical specifications or similar documents is given by Münch and is to be regarded as approximate. Such particulars do not constitute agreements on quality of a legal and factual nature as defined in section 434 (1) subs. 1 and subs. 2 and in section 636 (2) subs. 1 of the German Civil Code (BGB) and remain subject in other respects to technical modifications and improvements. Samples are intended for non-binding demonstration purposes only.

(2) Warranty rights of the customer assume that the latter has duly discharged its obligation of inspection and immediate notification of defects under section 377 of the German Commercial Code (HGB). Münch must be given prompt written notification, within eight days of receipt of the goods, of any obvious failure of the goods or services to conform to the specifications in the purchase order – in any way – and of any material defects which are present on handover of the goods or services to the customer if the failure or defect is evident on receipt of the goods or services when conducting the standard delivery check (obvious nonconformities and defects). Issues which cannot be established immediately, despite carrying out the obligatory checks, must be set out in writing to Münch within three days of their discovery. Failure to give due notification shall imply that the goods or services have been accepted as conforming to the contract, duly excluding any claims against Münch. The customer shall then bear the full burden of proof in respect of all conditions of entitlement, especially in respect of the fault itself, the time of the discovery of the fault and the due notification of defects.

(3) Münch will honour claims on the warranty and replace faulty goods in justified cases in which the customer has given due notification within the specified time limit as set out in section VIII.2. Rejected goods are to be sent to Münch at no cost. Should the subsequent inspection by Münch reveal that the goods are not defective, a flat inspection rate of € 25.00 will be charged for each rejected and tested article plus postage and packaging and plus statutory value added tax. Goods replaced under the warranty and declared free of defects after inspection will be returned at the expense and risk of the customer. If the attempt at rectification should fail, the customer may generally opt for deduction of payment (reduction) or rescission of the contract (cancellation). The customer shall not have any right of withdrawal, however, in cases involving merely minor infringements of contract, especially in cases where defects are only negligible. If the customer chooses to withdraw from the contract on account of a defect of title or quality following a failed attempt at rectification, the customer shall not then be entitled to claim for damages on account of the defect.

(4) Claims for defects shall not apply in case of slight nonconformity with the agreed quality, insignificant impairment of serviceability, natural wear and tear, and in case of damage which arises after the passing of risk as a result of incorrect or negligent handling, excessive operational demands or on account of extraordinary external influences which are not presupposed under the contract.

(5) In case of slight neglect of duty, the liability of Münch shall be limited to the average damages directly foreseeable under the type of contract and typically encountered with the object of purchase. This shall also apply in case of slight breach of duty on the part of the legal representatives or servants of Münch. Münch shall not be liable to contractors in case of slight neglect of immaterial contractual duties.

(6) The above limitations of liability shall not apply to product liability claims of the customer, nor shall the limitations of liability apply in case of bodily harm and damage to health attributable to Münch or in case of loss of the customer's life attributable to Münch.
 
(7) Claims of the customer for rectification of defects and existing claims for cancellation, reduction or damages owing to a defect shall lapse one year after the start of the warranty period provided that Münch has not fraudulently concealed the defect and the customer is a contractor.

XI. Reservation of title

(1) Münch hereby reserves title to all delivered goods contrary to the customer until such time as all receivables due to Münch from the business relations – plus interest and legal costs – have been paid in full and cannot be contested.

(2) The customer is required to store goods or services provided by Münch which are subject to reservation of title separately from other stock and in such a way that they can be identified at any time as having been supplied by Münch.

(3) The customer is entitled to resell the goods subject to reservation of ownership in the normal course of business. The customer hereby assigns to Münch the receivables due from the buyer from the resale of the goods subject to reservation of ownership in the final invoice amount agreed with Münch (including value added tax). This assignment arrangement shall apply regardless of whether the purchased item has been resold without further processing or after further processing. The customer shall remain entitled to collect the receivables including after said assignment. This shall not affect the authority of Münch to collect the receivables itself. Münch shall not collect the receivables, however, while the customer duly discharges its payment obligations from the proceeds received, is not in arrears with payments and, most importantly, if no request has been made to open insolvency proceedings or payments have been discontinued.

(4) The processing, treatment or alteration of the purchased item by the customer shall always be carried out in the name of and on behalf of Münch. In this case the vested right of the customer to the purchased item shall carry forward to the altered item. Insofar as the purchased item is processed with other objects not belonging to Münch, Münch shall acquire a share in ownership of the new item depending on the objective value of the item purchased from Münch in proportion to the other objects at the time of the processing. The same shall apply if items are mixed together. Insofar as the objects are mixed in such a way that the customer's item is to be regarded as the main item, it shall be deemed to have been agreed that the customer shall transfer the proportional share of the ownership to Münch and shall hold the resulting sole ownership or co-ownership for Münch.

(5) Until such time as the title has transferred to the customer, the latter shall be required to handle the goods carefully and the customer undertakes to take out adequate insurance cover against fire, theft, vandalism and similar risks at its own expense for the items belonging to Münch and subject to reservation of title. Any claims on the insurance relating to the goods subject to reservation of title shall be assigned to Münch by the customer; Münch hereby accepts said assignment. Claims on insurance policies for such cases of damage or loss are hereby assigned to Münch; Münch hereby accepts said assignment.

(6) Should goods or services of Münch which are subject to reservation of title be seized by third parties, the customer shall issue the relevant statutory declaration, or if insolvency proceedings are opened, the customer shall be required to notify Münch immediately and to do everything possible to enable Münch to assert its rights and claims, especially that of the reservation of title. The customer shall be required to give immediate notification of any damage or the destruction of the goods, any change of ownership and any change of business location.

XII. General limitations of liability

(1) Unless stipulated otherwise in these Terms & Conditions, Münch will only be liable for damages for breach of contractual or non-contractual duties, including for failure to attend to collateral duties or to duties during the contract negotiations, in case of deliberate intent or gross negligence on the part of its legal representatives or vicarious agents and in case of neglect of major contractual duties (cardinal obligations).

(2) In case of neglect of cardinal obligations, Münch will only be liable for such damages as are foreseeable and typical under the relevant contracts, except in cases of deliberate intent or gross negligence on the part of its legal representatives or vicarious agents.

(3) The above limitations of liability shall not apply in case of injury to life, limb or health, personal injury, or damage to items in private use under the law on product liability.

XIII. Place of jurisdiction and place of performance

If the parties are registered merchants, the place of performance and place of jurisdiction shall be 69469 Weinheim / Bergstraße. Weinheim / Bergstraße shall also be the applicable place of venue for and against business partners of Münch who have no place of general jurisdiction in the Federal Republic of Germany.

XIV. Applicable law

(1) All legal relations between the customer and Münch, regardless of head office and / or nationality, shall be governed by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) German shall be the contractual language and the official language for negotiations.

(3) The General Terms & Conditions of Münch governing contracts shall apply and thereafter the statutory provisions set out in the German Commercial Code (HGB) and in the German Civil Code (BGB).

XV. Data protection

Münch shall be entitled to save the data provided by the customer in electronic form and process these data for invoicing and accounting purposes. Münch shall also be entitled to pass these data on to third parties, most notably to financial institutions and contractual partners, insofar as necessary for order processing. Münch will duly comply with the data privacy regulations applicable in this regard.

XVI. Partial nullity

(1) Should individual agreements with customers and especially parts of individual provisions of the General Terms & Conditions of Münch be or become invalid, this shall not affect the validity of the contract as a whole.

(2) The parties undertake to replace the invalid provision with a legally admissible clause coming closest to the commercial purpose of the invalid provision or filling the relevant loophole.

XVII. Other provisions

Formulations and developments of Münch are subject to the relevant property rights, copyright protection, design patent or utility patent protection. The purchaser shall be required to pay compensation for all damages arising from the infringement of any property rights.


Münch Chemie International GmbH