General Terms & Conditions of Sale and Delivery (T&Cs)
§ 1 Scope
(1) All deliveries, performances and quotations of the CFW Laboratories Inc. (CFW) will take place exclusively on the basis of these General Terms and Conditions (T&Cs).
Enterprises in the meaning of these T&Cs are natural or legal entities or non-incorporated firms, with whom a business relationship is entered into, and who act in the exercising of a commercial, independent or freelance activity.
Customers in the meaning of these T&Cs are exclusively enterprises. CFW supplies exclusively to enterprises.
These T&Cs form an integral part of all contracts that CFW signs with its customers regarding the offered deliveries or services. They also apply to all future deliveries, services or quotations to the customer, even if they have not been separately agreed again. CFW is entitled to change these T&Cs after a corresponding notification to come into effect for the entire future business relationship with the customer.
(2) Terms and conditions of the customer or of third parties do not apply, even if CFW does not contradict their applicability in every individual case. Even if the vendor makes a reference to any correspondence that makes or contains a reference to the terms and conditions of the customer or of a third party, this shall not be construed to be an agreement with the applicability of such terms and conditions.
(3) If other T&Cs should apply in exception cases - in particular T&Cs of purchase of the customer - this will require an express written confirmation by CFW.
§ 2 Quotation and Signing of Contract
(1) All quotations from CFW are subject to change without notice and non-binding, provided they are not expressly defined as being binding or contain a certain period of validity for acceptance. CFW can accept purchase orders or contracts within 14 days after receipt. Verbal orders or orders received by fax will only become binding when they are confirmed in writing or execution of the designing work is started or the goods are dispatched to the customer together with the invoice. If the contract is signed over the Internet, the seller will give the customer the possibility to view the provisions of the contract including the General T&Cs at the time of contract sign-off and to save them in a reproducible form. . CFW reserves the right and the customer agrees that CFW will procure information on the customer's creditworthiness and his economic status. In case of a negative result of the creditworthiness check, CFW reserves the right to not execute the contract.
(2) The sole definitive document for the legal relationship between CFW and the customer is the written, signed purchase contract, including these T&Cs. It expresses all the agreements between the parties to the contract in their entirety. Verbal assurances of the vendor before the signing of this contract are legally not binding and verbal agreements between the parties will be replaced by written provisions. Any supplements and changes to the signed agreement including these T&Cs must be in writing for them to come into effect. Transmittal by fax is sufficient as being in writing; otherwise, in general, telecommunicated transmission, in particular, by e-mail, is not sufficient.
(3) Information from CFW regarding the object of shipment (e.g. utility values, tolerances and technical data) as well as the depictions of the objects (e.g. figures) is only approximately definitive, provided the usability for the contractually intended purpose does not require an exact match as a precondition; subject to changes for production engineering reasons. The specifications are not guaranteed quality features, but descriptions or characterizations of the shipment. Standard deviations and deviations that occur owing to legal requirements or are technical improvements are permitted, provided they do not affect the usability for the contractually intended purpose. CFW is entitled to supply products modified from the order, or customized products, provided their properties do not affect the desired usability to a significant extent.
(4) Information as to quantity is always approximate, unless it is unambiguously defined by the type and quality of the product. Deviations of 10 percent up or down will be considered to be in keeping with the contract and will be fully taken into account for the invoicing total.
(5) CFW reserves the ownership or copyright to all its quotations or cost estimates, as well as to the calculations, brochures, catalogs and other documents made available to the customer. The customer must not provide third parties any access to these objects or their contents or broadcast them, or use them or have them used by a third party, or reproduce them without the express consent of CFW. Upon demand from CFW, the customer must return these objects in their entirety and destroy any copies that may have been made, if the customer does not need them any more in the normal course of business or if negotiations do not result in the signing of a contract.
§ 3 Prices and Payment
(1) The prices hold good for the scope of shipment and services described in the order confirmations. Additional or special services will be charged separately. The prices are in USD ex-works plus packing, VAT and in the case of export shipments, customs duties and fees and other official charges. With the publication of a new catalog, all earlier catalogs and price lists become null and void.
(2) If the agreed prices are based on the list prices of CFW and the shipment is to take place more than 3 months after contract sign-off, the list prices of CFW valid at the time of shipment apply.
(3) Invoiced amounts are to be paid upon shipment of the goods, but not later than after 7 days, without any deduction. A deduction of a cash discount requires a previous special written agreement. Receipt of the payment by CFW is decisive as the date of payment. Checks are subject to realization of proceeds. If the customer does not pay on the due date, interest at 5% p.a. above the basic interest rate will be charged from the due date onwards; the enforcement of higher interest rates and further compensation claims in case of a delay remain unaffected. Payments will always be applied towards offsetting the oldest debit plus any interest due. Assured discounts will not be granted if the customer is late in payment for earlier shipments.
(4) There is an additional charge of USD 10.00 for telephone orders.
(5) The offsetting against counter-claims of the customer or retention of payments owing to such claims is only permitted if such counter-claims are undisputed or legally determined.
(6) CFW is entitled to provide services or shipments that are still outstanding only against advance payments or security, if, after completion of the contract, circumstances become known that are suitable for significantly reducing the creditworthiness of the customer and because of which the payment of the open claims of CFW by the customer under the respective contractual relationship (including other individual orders to which the same frame contract applies) is in jeopardy or the customer delays the payment of an invoice of a significant amount. In the latter case, CFW is additionally entitled to make all claims due immediately.
(7) In case of cancellation of the order, CFW is entitled to debit all the costs that arise from the cancellation to the customer. This particularly applies to costs that CFW incurs for its suppliers, but also for its own costs. Returns of goods that are free of shortcomings may only be made with our express consent, freight prepaid to our account. For costs that are incurred, a lump-sum processing charge of up to 10% of the value of the goods, subject to a minimum of USD 18.00 plus VAT will be charged.
(8) The customer does not have any general rights of exchange. If returns of the goods have been agreed in individual cases, the return shipment will be made at the risk and cost of the customer. After receipt and inspection of the goods, we will issue a credit note of max. 90% of the supply price for undamaged goods returned in their original packaging.
§ 4 Shipment and Delivery Period
(1) Shipments will be made ex-works.
(2) Deadlines and dates announced by CFW for shipments and services always hold good only approximately, unless a specific deadline or a specific date has been expressly promised or agreed. If a shipment has been agreed, the shipment deadlines and dates refer to the time of handing over to the freight forwarder or shipping agent or any other third party entrusted with the transport. The delivery period starts on the day of clarification of all the details of the order, the provision of the required documents and if applicable, the agreed advance payment. It will be extended by the period by which the customer has delayed the execution of his responsibilities in an ongoing business relationship, even from other contracts.
(3) CFW can - regardless of the rights from delay by the customer - demand of the customer an extension of delivery periods or a postponement of delivery dates by the duration by which the customer has failed to fulfill his responsibilities towards CFW.
(4) CFW does not accept any liability for impossibility of shipment or for shipment delays caused by Acts of God or other events that were not foreseeable at the time of contract sign-off (e.g. operational disturbances of any kind, difficulties in material procurement, transport delays, strikes, legal embargos, shortage of labor, energy or raw materials, difficulties in the procurement of the necessary official approvals, official measures or in the absence of shipments by the supplier, or if such a shipment is incorrect or not punctual), for which the vendor is not responsible. Such events extend the due date correspondingly, even if they occur during a delay that has already commenced. In this case, too, the extended deadline set by the customer will be extended further by the duration of the unforeseen event. Insofar as such events make it extremely difficult or even impossible for CFW to make the shipment, and the hindrance is not just of a temporary duration, CFW is entitled to withdraw from the contract. In the case of hindrances of a temporary duration, the delivery periods will be extended or the shipment dates will be postponed by the duration of the hindrance plus a reasonable resumption time. If, as a consequence of the delay, the customer is unable to accept the shipment, then after a period to be set in writing has elapsed, he can withdraw from the contract with a written explanation to CFW. There can be no damage compensation claims in this case.
(5) CFW is only entitled to make partial shipments if the customer is able to utilize the partial shipment in the framework of the contractual intended purpose,
the shipment of the remaining ordered goods is ensured and this does not entail any significant additional costs or expenses for the customer as a result (unless CFW agrees to bear these additional costs).
(6) With regard to punctual shipments, CFW accepts liability only for its own culpability and that of its partners in fulfillment of the contract. CFW does not accept liability for the culpability of the suppliers. However, CFW undertakes to transfer replacement compensation claims against its supplier to the customer.
(7) If there is a delay in shipment at CFW or if a shipment becomes impossible for CFW, for whatever reasons, the liability of CFW - with the exception of the case in § 4 (6) - is limited to damage compensation as defined by § 8 of these T&Cs.
§ 5 Place of Fulfillment, Shipping, Packing, Transfer of Risk, Acceptance
(1) The place of performance for all obligations is WALNUT, unless there is some other provision.
(2) The method of shipment and the packing are subject to the responsible discretion of CFW. Any markings that may have been made must not be removed.
(3) The risk is transferred not later than with the handing over of the supplied object (where the starting of the loading process is decisive) to the shipping agent or freight forwarder or third party appointed for carrying out the shipment. This also applies if partial shipments are made or CFW has taken on other services (e.g. shipment); so also for freight prepaid shipments or shipments with free delivery. If the shipment or hand-over is delayed owing to a circumstance for which the customer is responsible, the risk is transferred to the customer from the day on which CFW is ready for shipment and has notified the customer.
(4) Unloading and storage is a responsibility of the buyer. The customer's employees helping during unloading do not do so in a role as assistant of CFW, but at the risk of the customer. The same applies correspondingly to supplies from third parties provided a liability of CFW could be derived from their conduct. The liability of the third party remains unaffected.
(5) The customer bears the storage costs after the transfer of risk. In case of storage by CFW, the storage costs will be 0.25% of the invoice amount of the supplied goods to be stored for every elapsed week. The right to enforcement and demonstration of other or lower storage costs is reserved.
(6) CFW will insure the shipment only upon the express wish of the customer and at his cost against theft, breakage, transport damage, fire and damage from water or other insurable risks.
(7) If an acceptance is to take place, the purchased goods will be said to have been accepted if the delivery is finished, CFW has advised the customer of this under reference to the fictitious acceptance according to this § 5 (7) and notified him to carry out acceptance, twelve working days have passed since the shipment or installation, or the customer has started utilizing the purchased object and in that case, 6 working days have passed since shipment or installation, and the customer has omitted to inspect and accept the goods within this period for another reason than a shortcoming that has been notified to CFW, which either makes the utilization of the purchased object impossible or significantly hinders it.
§ 6 Warranty
(1) The warranty period is half of a year from shipment; if an acceptance is required, from the time of acceptance. The warranty period for chemical and physical properties is shortened if the substance has a use-before date of less than half of a year. In that case, the warranty is up to the given use-before date. This does not apply if the Law prescribes longer warranty periods.
(2) The shipped objects must be immediately carefully inspected after shipment to the customer or to a third party nominated by the customer, by trained personnel who are familiar with the rules for handling chemical substances, in accordance with the usual commercial customs. If delivery is in shipment lots, then fundamentally, the labeling of every individual shipment package must be checked and matched with the purchase order. They are considered to be approved if CFW does not receive a written complaint about the defects with regard to apparent shortcomings or other shortcomings that were recognizable with an immediate, careful inspection, within seven working days after delivery of the supplied object, or in case of hidden shortcomings, within seven working days after discovery of the shortcoming, but not later than 6 months after the shipment or the time in which the defect was recognizable for the customer with normal use of the supplied object without a closer inspection, in the form as defined in § 2 (2). If no complaint is made about the shortcoming, the customer could lose his warranty entitlements regarding determined or determinable shortcomings; this also applies in case of an erroneous wrong shipment, and in fact even in the case of such a significant deviation that approval of the goods would have to be considered to be impossible. Upon demand from CFW, the rejected supplied object is to be returned freight prepaid to CFW. In case of a justified complaint, CFW will reimburse the costs of the most economical method of shipment; this does not apply if the costs increase because the shipment object is located at another location from the location of the utilization for intended purpose.
(3) In case of hidden defects in the supplied objects, CFW is first obliged and entitled to repair or replace the defective part, at its discretion, with the decision regarding this having to be made within a reasonable time. In the case of failure, i. e. impossibility, unacceptability, refusal or unreasonable delay in the repair work or replacement delivery, the customer can withdraw from the contract or reduce the purchase price proportionately in a reasonable manner.
(4) If a defect is because of a culpability of CFW, the customer can demand damage compensation under the preconditions defined in § 8.
(5) In case of shortcomings in materials of other manufacturers, which CFW is unable to redress because of licensing law related or actual reasons, CFW will, at its discretion, enforce the warranty on the manufacturer and supplier for the invoice of the customer or transfer the rights to the customer. Warranty claims against CFW are only tenable with such shortcomings under the other preconditions and as determined by these T&Cs only if the legal implementation of the aforementioned claims on the manufacturer and supplier was without success or, for example, is hopeless because of a bankruptcy. During the period of legal dispute, the statue of limitations of the relevant warranty claims of the customer against CFW is suppressed.
(6) The warranty is not applicable if the customer changes the supplied object without the consent of CFW, or has it changed and as a result of this, the redressal of the defect becomes impossible or unacceptably difficult as a result. The customer must bear the additional costs of the fault rectification resulting from the change.
§ 7 Copyright
(1) CFW does not warrant that the supplied object is free of industrial property rights or third party copyright in the country of the customer; this also applies to the execution of processes and the utilization in combination with other products. Each party will immediately notify the other party in writing if any claims are to be made against the other party owing to infringement of such rights.
(2) If the supplied object infringes the industrial property rights or copyright of a third party, CFW, at its discretion, and at its cost, will modify the supplied object or replace it in such a way that there is no more infringement of the rights of third parties, but the supplied object continues to fulfill the contractually agreed functions, or CFW will procure for the customer the usage rights through the acquisition of a license contract. If this is not possible within a reasonable period, the customer is entitled to withdraw from the contract or to suitably reduce the purchase price. Any damage compensation claims of the customer are subject to the restrictions of § 8 of these T&Cs.
§ 8 Liability for Damage Compensation Owing to Culpability
(1) The liability of CFW of damage compensation, regardless of the legal grounds and in particular, owing to impossibility, delay, defective or faulty shipment, breach of contract, breach of responsibilities at the time of contract negotiations, and tortious acts, is limited, if this has to do with a culpability, according to the determination of § 8 of these T&Cs. Damage compensation claims of the customer owing to non-fulfillment or delay are limited to the invoice value of the quantity of goods that were not supplied or not supplied on time. This does not apply in case of malice aforethought or gross negligence except that a liability according to § 8 of these T&Cs is excluded.
It is the responsibility of the customer to ensure that only suitably trained and qualified personnel are deployed for handling the delivered materials in order to minimize the risk of injury. We shall endeavor to advise you as best as possible. However, this does not release you of the responsibility of examining, at your own initiative, the suitability of our products for the purposes you envisage. The current laws and regulations must be obeyed without fail. This also applies to the property rights of third parties.
(2) CFW does not accept liability
a) insofar as damage could have been avoided through compliance with the inspection obligations of the customer, unless the damage has been caused by negligent conduct of its legal representatives,
b) in the case of simple negligence of its organs, legal representatives, employees or other assistants;
c) in case of gross negligence of its non-supervisory employees or other assistants, provided there is no infringement of responsibilities that are material to this contract. The material contract obligations are the responsibility for punctual, fault-free delivery and protection and care responsibilities that facilitate for the customer the contract-conformant usage of the supplied object or the protection of the life and limb of the personnel of the customer or third parties or the property of the customer from significant damage.
(3) Inasmuch as CFW is liable for damage compensation according to § 8 (2) of these T&Cs, this liability is limited to damages that CFW has foreseen at the time of contract sign-off as a possible consequence of a breach of contract or - taking into account the circumstances that it was familiar with or with which it should have been familiar - should have foreseen upon exercising due diligence. Indirect damages and consequential damage, which are a consequence of shortcomings in the supplied object, are, moreover, only replaceable provided such damages would be typically expected with utilization of the supplied object according to intended purpose.
(4) The liability for damages from a defective or missed delivery is limited to the value of goods of the purchase order, if the damages incurred are exclusively due to non-usability of the materials for a certain test procedure.
(5) The aforementioned liability exclusions and limitations apply in the same proportion in favor of the organs, legal representatives, employees and other assistants of CFW.
(6) If CFW provides technical information or acts in an advisory capacity and this providing of information or advising is not related to the service it is obliged to provide as being in the contractually agreed scope of services, this is done free of cost and with the exclusion of any liability .
(7) The limitations of § 8 of these T&Cs do not apply to the liability of CFW owing to negligent conduct, to guaranteed quality features, owing to injury to the life and limb or the health or in keeping with the product liability law.
(8) All claims in the meaning of § 8 of these T&Cs will be subject to the statute of limitations one year after the action that created the damage took place, except claims in tort.
§ 9 Retention of Ownership
(1) CFW retains the right of ownership of the supplied objects till the time of complete payment of all claims from the purchase contract and in the framework of an ongoing business relationship. This also applies to all future shipments, even if we do not expressly refer to it or them. In case of a current account, the retained ownership is also a security for our account balance claim. CFW is entitled to re-acquire the sold goods if the customer's conduct is in contravention of the contract provisions. To enforce the retention of ownership of the conditional goods, CFW is allowed to enter the business premises of the customer and take charge of the conditional goods.
(2) It is the responsibility of the customer to handle the purchased goods with due care till its ownership is transferred. As long as ownership has not been transferred, the customer must immediately inform CFW in writing if the supplied object is mortgaged or subjected to any other intervention of third parties. If the third party is not in a position to reimburse the legal and extra-legal costs of a lawsuit, the customer is liable to us for the financial losses incurred.
(3) The customer is entitled to sell the conditional goods in the normal course of business. The customer transfers the liabilities of the buyer in this further sale of the conditional goods to CFW right at this stage itself, to the magnitude of the agreed final invoice value (including VAT). CFW accepts this transfer of liability. This transfer of liability holds good regardless of whether the purchased goods have been sold further without or after further processing. The customer continues to remain entitled to claim and receive the claim even after the transfer of liability. Our entitlement to recover the liability ourselves remains unaffected thereby. However, CFW will not recover the liability as long as the customer satisfies his payment responsibilities from the payments procured, is not in default for payments to be made and in particular, an application has not been made for starting an insolvency process or there is no payment stoppage; in these cases, this entitlement to payment recovery is not applicable.
(4) The processing or working or modification of the purchased goods by the buyer always takes place in the name of and on behalf of CFW. In this case, the right in course of acquisition of the customer to the purchased goods to the modified object continues to apply. If the purchased goods are processed with other objects not belonging to CFW, CFW will be entitled to co-ownership of the new object in the ratio of the objective value of the purchased goods to the other processed objects at the time of processing, under exclusion of a co-ownership of the customer. The same applies in case of mixing. Inasmuch as the mixing occurs in such a manner that the goods of the customer are to be viewed as the main component, it is hereby agreed that the customer will transfer proportionate joint ownership to CFW and hold the sole or joint ownership that thus results in trust and free of cost for us.
(5) The customer will transfer to us all the claims, entitlements, ancillary claims and securities from the future sale of our conditional goods - if this has not already been done - with the incorporation of these T&Cs till the repayment of all our claims. These rights serve as a security in the magnitude of the invoice amount of the respective conditional goods sold. CFW undertakes to release the collateral to which it is entitled, subject to its discretion, if so required by the customer, if its value exceeds the claims to be secured by more than 10 %. CFW is entitled and the customer is obliged, if so required by CFW, to notify the transfer of liability to the buyers of the customer.
(6) It is the responsibility of the customer to hand over to CFW any and every required information and document for the enforcement of its rights on the acceptor. The customer undertakes not to agree to any transfer embargos with third parties. Any existing transfer embargos must be immediately notified in writing.
(7) Mortgaging and transfer as collateral of our conditional goods are not permitted as long as they, the conditional goods, are in our ownership or co-ownership. The customer must immediately notify us of any infringement of our rights by third parties in writing. In case of mortgaging, the customer must immediately provide us a copy of the mortgaging protocol and an affirmation in lieu of an oath that confirms the continuance of our entitlement and our reservation of ownership to the mortgaged goods. The customer will bear intervention costs. The customer is under obligation to notify and to enjoin his buyers of our retention of ownership.
