General Terms & Conditions of Sale of Daikin Chemical Europe GmbH
I. General Provisions; Scope of Application
The General Terms and Conditions of Sale (hereinafter called GTC) of Daikin Chemical Europe GmbH (hereinafter called "DCE") shall apply in their respective version exclusively. By placing a purchase order, or by accepting the delivery of the ordered goods, the customer accepts the exclusive application of these GTC. Any terms and conditions of the customer contradicting or deviating from these GTC shall not be accepted by DCE, unless DCE has given its express written consent to their applicability. The GTC of DCE shall also apply, if unreserved delivery is performed to the customer by DCE upon full knowledge of terms and conditions of the customer contradicting or deviating from DCE´s GTC.
The GTC of DCE shall be automatically applied to all future deliveries to the customer without expressly taken as a basis of delivery again.
II. Offers / Secrecy / Intellectual Property Rights
1. DCE´s offers shall not be binding and without engagement. This also applies in the event that DCE has sent catalogues, technical documentation or other product descriptions or documents to the customer, including those sent in electronic form. Drawings, pictures, dimensions and weights are only approximate indications unless otherwise designated as binding. The receipt of an order is confirmed by non-binding Order Acknowledgement.
2. A purchase order of goods placed by the customer shall be deemed a legally binding offer to enter into a contract with DCE. Insofar as nothing further arises from the purchase order, DCE may accept or reject such offer within fifteen (15) business days after receipt of the purchase order. Order confirmations of DCE which deviate from the original purchase order are deemed accepted by the customer, unless the customer objects within three (3) business days after receipt of the order confirmation.
3. A sale on call must be effected within the specified period of time. Where the customer is in default with calling the purchased goods by DCE, DCE shall, on the grounds of the still unfulfilled part of contract, be free to either withdraw from the contract or to claim damages instead of performance.
4. The customer shall be responsible for compliance with any potential export regulations, if the customer exports DCE’s products abroad. If the order of the customer, which was accepted by DCE, infringes the statutory export prohibitions, DCE can cancel the sales contract. In this case the customer has no claim for compensation of damages.
5. DCE reserves the right of ownership and the intellectual property rights with regard to all documents relating to offers, samples, test samples and products. The same shall apply also for information which DCE has marked as confidential. The customer must not pass without prior written consent of DCE the offer documents or confidential information to a third party, nor use them for any purpose other than agreed upon.
6. The customer is obligated to keep secrecy with regard to all information, business secrets, trade secrets, know-how, samples and test samples received from DCE. The customer shall be responsible for warranting that the design drawings submitted by him do not infringe on any third party rights, and shall hold DCE free and harmless in the event of recourse claims.
7. If the customer wishes to use the logo or the company name of DCE in its business activity, the customer requires the prior written consent of DCE.
III. Prices / Payment Conditions / Delay in Payment
1. Unless otherwise shown in DCE’s order confirmation, all prices are invoiced in Euro, without engagement ex warehouse, including packaging costs and without insurance costs and other charges. The statutory value added tax (hereinafter called “V.A.T.”) amount shall not be included in the prices; where a taxable operation is concerned, the statutory V.A.T. amount shall be separately specified in the invoice as per the date of invoicing.
2. DCE shall be entitled to adjust the prices of the contract that are to be paid by the customer on basis of the development of costs relevant for the price calculation.
An increase or decrease of the DCE’s prices is to be considered or passed on to, respectively, if, for example, the costs for the provision of the ordered products (e.g. raw material costs) increase or decrease, or other changes in the (legal) framework conditions (e.g. transport costs) occur and, as a result, lead to a change of the cost situation. An increase in one cost type (e.g. personnel costs) may only be taken into account for an increase in DCE’s prices if such an increase in the respective cost type is not set off by a decrease in the cost type of another area (e.g. transport costs). In the event of a decrease in one cost type (e.g. transport costs), the prices of DCE are to be reduced insofar as such a cost reduction is not set off by a cost increase in another area already.
3. Unless otherwise specified in DCE’s order confirmation, a default occurs thirty (30) days after the date of invoice. The remaining preconditions and the consequences arising out of the default result from the statutory regulations. The right to assert further damage shall be reserved by DCE.
4. DCE shall be entitled to make delivery contingent upon advance payment or to perform delivery by way of c.o.d. shipment. The customer may deduct any discount from the purchase price only based on the prior written approval of DCE.
5. If, subsequent to contract conclusion, DCE gains knowledge of circumstances which considerably lower the credit standing of the customer or give occasion to fear non-compliance with the payment obligations, DCE shall be entitled to prohibit a resale of goods delivered under reservation of title and to demand the return of those goods at the expense of the customer. DCE may thereafter make the renewed delivery contingent upon advance payment, without putting the customer in a position to enforce the right of retention or rescission in that respect.
IV. Set-off; Retention
The set-off against counterclaims or the retention of payments based on such claims shall be excluded, unless they are undisputed or have been finally adjudicated upon, or are based on the same order.
V. Delivery Time; Delay in Delivery
1. Binding delivery dates are agreed on in writing, or non-binding delivery times stated in the respective order confirmation. The delivery period is calculated ex our delivery warehouse.
2. The period of delivery shall in principle start to run on the date of the order confirmation by DCE, however at the earliest at a time when all details required for delivery are known to DCE. Compliance with the agreed delivery dates is subject to clarification of all technical and organisational issues as well as the proper and punctual performance of the customer’s duties and obligations to cooperate. Insofar, the plea of non-performance of the contract shall be reserved. In case the abovementioned issues, duties and obligations are not clarified or fulfilled by the customer, all delivery dates are extended by DCE for an appropriate period of time.
3. The delivery dates shall be duly observed, if the delivered articles have left the works prior to expiration of the time-limit, or if notice of readiness for dispatch was given to the customer. Partial deliveries and partial invoices are permitted.
4. Extraordinary events which are not attributable to DCE and which are beyond the sphere of influence of DCE, such as war, acts of terror, epidemics, natural disasters, strike, lockout, occupation of factories and facilities, measures taken by authorities, energy or raw material shortages, damages occurred due to fire and explosion, disruption of transport, operational breakdown, governmental acts (regardless of lawful or unlawful), or similar events, release DCE from its obligations for the duration of the disruption; the customer will be informed about the occurrence and end of the disruption in an appropriate manner. DCE has no obligation to provide replacement goods from third parties.
5. In case the delivery is subsequently unreasonably impeded by one of the events listed in paragraph 4, or in case of delays in delivery by sub-suppliers, DCE reserves the right to withdraw from the contract in part or in whole on account of the part not completed. In such case, DCE will notify the customer without undue delay, and reimburse any payments already made. 6. The customer may not derive any claims for compensation from any delivery delays, from DCE being excused from its performance, or from DCE’s withdrawal from the contract.
7. In the event that DCE is in default of delivery or performance of its obligation, the regulations stipulated in section XI shall, in cases where fault is the decisive factor, apply to any claims for damages whatsoever that are due to the customer.
VI. Transfer of Risk
Unless otherwise separately agreed, deliveries shall be performed FCA ex warehouse/factory of DCE, Incoterms 2020. Incoterms 2020 shall also be applied in the separate agreements.
Unless otherwise agreed, packing material and packaging shall only be taken back by DCE as mandated by the Packaging Act (Verpackungsgesetz). For containers and cylinders for gases and refrigerants and other returnable packaging following terms apply:
1. Packaging lent by DCE: No property rights are being transferred to the customer. It is solely intended for the goods sold. Packaging shall be returned to DCE in good condition and within the time specified. If the packaging is not returned within the stipulated time, or is destroyed or deteriorates, DCE will be entitled, without any prior written notice, to invoice the cost of its replacement, in which case the Purchaser shall become the owner of the replaced packaging, or the cost of restoring the packaging to its original condition and also to claim for the Purchaser an indemnity for loss and damages suffered as a result of the failure of the Purchaser to comply with the above provisions. Further claims for damages are not excluded. The buyer is free to prove that he is not responsible for the damage.
Our loan pressure drums (volume from 400 litres and more) have to be returned to our production plant within 90 days (EU) and 120 days (other countries) after shipment date. After this free of charge period, rental fees will be charged as follows:
- 400-900 l drums technical product: 3 EUR / day
- Reclaimed product: 4 EUR / day
- Pharma product: 6 EUR / day
- Bottles: 0.50 EUR / day
- Steel pallet: 1.00 EUR / day
The ISO tank will be delivered on chassis with a truck. The ISO tank unloading process shall be handled within 5 hours between truck arrival time at the plant and departure time of the truck. If truck turnaround time exceeds the 5 hours free time, following charges will apply:
- Waiting time: 45 EUR / hour
- Max charge: 500 EUR / day
2. Transferred packaging: When ownership of the packaging has been transferred to the Purchaser, he shall remove all references to the previous owner and shall not use such packaging for any purpose other than for which it was originally intended.
3. Retested packaging: when packaging is subject to retesting in accordance with a timeline set by regulations (the Purchaser declaring that he is aware of the same) the last testing date is marked on the packaging. DCE will have no liability for any accident arising from this packaging, whether empty or full, where it has been transferred to the Purchaser or not returned to us before the date of the next test.
4. Packaging supplied by the Purchaser: the purchaser shall be responsible for the choice and the quality of the packaging that is intended to receive the goods. The Purchaser shall supply packaging which conforms to the regulations then in force.
VIII. Reservation of Title
1. DCE reserves title to the delivered goods until receipt of all payments under the business relationship with the customer. If the customer acts in breach of contract, especially due to default in payment, DCE shall be entitled to take the object of sale back. A withdrawal of the object of sale implies a rescission of the contract. DCE may realize the object of sale after having taken it back. The result from realization shall be allowed as credit against the liabilities of the customer, less reasonable cost of use.
2. In case of attachments of property or other interventions by third parties, the customer must immediately inform DCE in writing, so as to enable DCE to take legal action in accordance with § 771 of the Code of Civil Procedure (ZPO). If said third party is unable to reimburse DCE for the judicial and extrajudicial costs of a legal action pursuant to § 771 ZPO, the customer shall be liable for the loss sustained by DCE.
3. The customer shall be entitled to resell the object of sale in the ordinary course of business. However, the customer shall, hereby, assign to DCE all debts in the amount of the invoiced final sum (including V.A.T.) of DCE´s claim, accruing to the customer from the resale against the customer’s purchasers or third parties, regardless of whether the object of sale was resold without or after processing. The customer shall remain authorized to recover the said debt even subsequent to the assignment. This shall not affect the power of DCE to recover the debt by itself. DCE shall undertake, however, not to recover the debt as long as the customer complies with its payment obligations out of the collected proceeds, is not in default with payment, and particularly as long as no insolvency petition has been filed or payments have been suspended. Should this be the case, DCE may demand that the customer inform DCE of the assigned debts and their debtors, specify full particulars required for recovery, deliver all pertinent records and communicate the assignment to the third party debtors.
4. The processing or transformation of the object of sale by the customer shall be done for DCE. If the object of sale is processed with other articles or materials which are not owned by DCE, DCE shall acquire a co-owner’s interest in the new object in proportion to the value of the object of sale (invoiced final amount including V.A.T.) as compared to the other processed articles at the time of processing. For the rest the same shall apply to the object arising from processing, as to the object of sale delivered with reservations.
5. If the object of sale is inseparably mixed with other articles not belonging to DCE, DCE shall acquire a co-owner’s interest in the new object in proportion to the value of the object of sale (invoiced final amount including V.A.T.) as compared to the other mixed articles at the time of mixing. If the mixture is done in such a manner that the object of the customer is to be regarded as the main object, the parties agree that the customer shall transfer co-ownership to DCE on a proportionate basis. The customer shall preserve the resulting sole or joint ownership for DCE.
6. If the value of the article serving DCE for security purposes and delivered with reservation of title exceeds the total claim of DCE against the customer by more than ten percent (10%), DCE shall insofar be committed to retransfer the security at the customer’s request. DCE shall be entitled to select the security which is to be retransferred.
IX. Liability for Defects
1. The goods delivered by DCE are already free from material defects, if their condition upon the transfer of risk corresponds to the quality agreed on between DCE and the customer. The agreed quality is determined solely by the properties, features and characteristics of the goods agreed on between the parties in writing, as written down in the standard product designations and descriptions (“quality agreement”), insofar as the quality agreement does not explicitly refer to non-binding information (e.g. average values). DCE does not give any warranties regarding the suitability of the goods for a certain application intended by the customer. The customer is solely responsible for the decision of whether any goods which conform to the quality agreement are suitable for a certain purpose and application.
2. In case of goods made to order based on the customers’ descriptions, plans, drawings etc. (“specifications”), the quality of the goods is measured exclusively based on these specifications and on further quality agreements concluded between the parties. Properties of the goods which are based on the customer’s specifications, do not constitute a defect, and give no rise to claims of the customer against DCE. In particular, the customer is solely responsible for the correctness and feasibility of all by him approved specifications and amendments that are submitted to DCE.
3. The customer shall immediately inspect the delivery in order to detect any defects, damage to goods in transit, any faulty delivery and variation in quantity. The warranty shall be excluded, if the customer fails to immediately assert recognisable defects in writing, however not later than within two (2) business days of DCE following receipt of the goods. Written notice of nonrecognisable defects must be given immediately upon their discovery.
Deviations of quantities within 10% for gases, and 5% for other bulk products, of those ordered, shall not be regarded as defects. However, the customer only pays for quantities actually delivered. DCE’s Product measurements will govern unless otherwise agreed. This applies in particular to the weigh tickets of DCE. No weight claims or credits will be allowed unless gross shipment weight discrepancies exceed 0.5% for packaged Product or 1% for bulk Product. No heel credits will be given.
4 In the event of a defect, a subsequent performance of the contract shall at DCE´s option either be effected through elimination of the defect, or through delivery of a new faultless article. Where the subsequent performance goes wrong, the customer shall, at its option, be entitled to cancel the contract or claim the reduction of the purchase price.
5. DCE shall be liable for damages in accordance with section XI below.
6. The limitation period for warranty or damage claims for defects shall be twelve (12) months, calculated from the date of the transfer of risk. This shall not affect the period of limitation for cases of recourse of claims for delivery pursuant to §§ 445a, 445b German Civil Code (BGB), as well as cases of gross negligence or wilful intent or personal injury.
X. Defects of Title
1. DCE is not aware of any legally recognised third party claims which would obstruct the contractual use of the goods.
2. Where use of the delivery item entails infringement of industrial property rights or national copyright DCE will obtain the right for further use of the goods, or modify the goods in such a way that there is no longer an infringement. In case this is not possible or economically not feasible, DCE as well as the customer have the right to withdraw from the contract. Further, and subject to the limitations of Clause XI, DCE will hold the customer harmless from claims which are undisputed or recognised in an enforceable judgement.
3. The customer has the obligation to inform DCE immediately if a claim of infringement of property rights is asserted against him by a third party due to the intended and contractual use of the goods, or if a third party requests the entitlement for the right of use (“Berechtigungsanfrage”) of the goods from the customer. The same applies if the customer becomes aware in some way or other that the intended and contractual use of the goods may violate any third party rights. In such cases, DCE is entitled to the extraordinary termination of the existing supply agreement. DCE is also entitled to extraordinary termination of any existing supply agreement, if DCE is exposed to the risk of violating any third party rights itself by executing such supply agreement.
4. In case of a third party claim against the customer as stipulated in paragraph 3, DCE will to its best ability support the customer in defending himself against such claims. Prerequisite for DCE’s support is that the customer has not made any statements to the third party to the detriment of DCE.
XI. Limitation on Liability for Damages
1.DCE shall be according to the statutory provisions liable for damages, based on any legal ground whatsoever, in particular negligent conduct upon contract conclusion, other breaches of duty or claims in tort, if the customer has asserted claims for damages caused intentionally or by gross negligence, including intentional or grossly negligent acts of DCE´s representatives or vicarious agents.
2.DCE shall be furthermore liable under the statutory provisions, if DCE has violated a substantial contractual obligation through culpable action. If DCE is not blamed for any intentional breach of contract, the liability for damages shall be limited to the foreseeable damage typically occurring. The foregoing limitations shall also apply in cases where the customer claims compensation for useless expenses instead of claiming compensation of the damage in lieu of contract performance.
3. The liability for culpable injury to life, health or for personal injury shall remain unaffected; this shall also apply to the mandatory liability under the Product Liability Act.
4. Any further liability for damages, going beyond the liability stipulated in section XI paragraphs 1, 2 and 3 above, shall be excluded.
5. Where the liability for damages vis-à-vis DCE is excluded or limited, this shall also apply with regard to the personal liability for damages of DCE´s employees, personnel, staff, representatives and vicarious agents.
XII. Indemnity Obligation of the customer
In the event of the customer reselling the goods to a third party, the customer shall indemnify DCE internally from any product liability claim and any other possible claim made by a third party, insofar as the customer is responsible for causing the default that is subject to the third party claim.
XIII. Jurisdiction / Place of Performance / Discrepancy / Data Protection
1. The place of jurisdiction for all disputes arising from the supply relationship between DCE and the customer shall be the registered place of business of DCE. DCE shall be, however, also entitled to take legal action before the court having jurisdiction over the seat of the customer.
2. The governing law shall be the law of the Federal Republic of Germany, to the exclusion of the conflict of laws provisions. The applicability of the U.N. Sales Convention is excluded.
3. Unless otherwise specified in the order confirmation, the place of performance for the obligations under the supply relationship shall be the registered place of business of DCE.
4. As for compliance with data protection, please refer to DCE‘s Privacy Statement for Business Partners.
5. In case of any inconsistency or discrepancy between the English version and the German version, the German language version shall prevail.
Updated version December 2022