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Terms and Conditions

Terms and Conditions
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General Terms and Conditions of European Additives GmbH

 

1 Validity of the Terms and Conditions

(1) All deliveries, services and offers of European Additives GmbH are based exclusively on these General Terms and Conditions. Therefore, these General Terms and Conditions also apply to all future business transactions even if they are not expressly agreed or made an integral part thereof. The General Terms and Conditions are accepted at the latest with the acceptance of the goods, the delivery or service of European Additives GmbH. Any of customers' confirmation referencing their business and purchasing terms and conditions do not become an integral part of the business transaction between European Additives GmbH and its customers. These business and purchasing terms and conditions are expressly rejected.  

(2) Orderer's general terms and conditions, particularly orderer's purchasing, delivery and payment terms and conditions are invalid to the extent these oppose the General Terms and Conditions of European Additives. Any deviations from these General Terms and Conditions are effective only, if European Additives GmbH confirms these in writing.  

 

2 Offers and Orders

(1) Unless the offers of European Additives GmbH do not expressly specify a binding term, European Additives GmbH shall be bound to one week from the date of the offer. The date European Additives GmbH receives the acceptance declaration determines timely acceptance. 

(2) European Additives GmbH is authorized to change time and place of delivery as well as the type of packaging at any time by written notice sent at least 7 calendar days prior to the agreed delivery date. The same applies to any modifications of product specifications, provided these can be implemented without additional time and effort during the standard production process of the supplier. In these cases, the notification term is an agreement with the above sentence, namely at least 7 calendar days. European Additives GmbH shall reimburse supplier for any additional costs incurred, verified and reasonable in connection with the modification. If such modifications cause a delay in delivery, which cannot be avoided with reasonable effort during the standard production and business operation of supplier, 

then the originally agreed delivery date is moved accordingly. Supplier will notify European Additives GmbH in writing of the extra costs or delay in delivery Supplier expects. This notification shall be sent in a timely manner prior to the delivery date; however, at least within 3 business days after receipt of the notification of European Additives GmbH in accordance with Sentence 1. 

(3) European Additives GmbH is authorized to terminate the Agreement at any time by written statement stating the reason for the termination, if European Additives GmbH can no longer utilize the ordered products in its business operation because of circumstances that occurred after the Agreement was concluded. In this event, European Additives GmbH shall reimburse Supplier for any partial services Supplier provided. 

 

3 Prices, Payment Terms, Invoicing Information

(1) The price shown in the order is binding.  

(2) All deliveries and services to European Additives GmbH are generally freight prepaid. Any other arrangements are only effective upon prior written agreement. The goods are delivered and shipped to the address specified in the Agreement. The price includes the packaging.

(3) European Additives GmbH pays the gross order amount within 30 days from the date the goods are delivered and the invoice is received. For the timeliness of the payments owed by European Additives GmbH, the receipt of the remittance order signed by a member authorized to represent European Additives GmbH at the financial institution of European Additives GmbH.

(4) All order confirmations, bills of lading and invoices must include the order number of European Additives GmbH, the delivery quantity and delivery address. If one or several of this information is missing and this delays processing during the regular business of European Additives GmbH, then this period of delay is added to the payment terms specified in Paragraph 4.

(5) In the event, payment is delayed, European Additives GmbH owes late fees of 5 percentage points above the base interest rate in accordance with Section 247 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)). 

 

4 Delivery Time and Delivery, Transfer of Risk

(1) The delivery time (delivery date or deadline) specified in the order is binding. Early deliveries are not accepted.  

(2) Supplier is obliged to notify European Additives GmbH immediately in writing, if circumstances occur and become noticeable, which prevent compliance with the delivery time.

(3) If the day, which is the latest date for delivery, can be determined based on the Agreement, then Supplier is in default at the end of that day without requiring European Additives GmbH sending a warning note.

(4) In the event, the delivery is delayed, European Additives GmbH has the right to unlimited legal claims, including the right of rescission and damage compensation in lieu of performance after the performance is not provided by the end of a reasonable grace period.  

(5) In the event deliveries are delayed and upon prior written warning notice to Supplier, European Additives GmbH is entitled to charge Supplier a contractual penalty of 0.5% for each started week of delayed delivery up to a maximum of 5% of the corresponding order value. The contractual penalty must be deducted from the damage compensation Supplier must pay.

(6) Supplier is not authorized to make partial deliveries without prior written consent of European Additives GmbH.  

(7) Even if shipping was agreed, risk only transfers to European Additives GmbH at the time the goods are transferred at the agreed place of delivery. 

 

5 Supplier's Right to Retain Title

Supplier may only retain title, to the extent that the payment obligations of European Additives GmbH refers to the products,

to which Supplier retains the title. In particular, any extended or prolonged retentions of title are impermissible.

 

6 Warranty Claims

(1) In the event of defects, European Additives GmbH has unrestricted legal claims. However, with 36 months, the warranty period differs therefrom.

(2) Complaints about differences in quality and quantity are sent in a timely manner, if European Additives GmbH notifies Supplier within 7 business days following the receipt of the goods at European Additives GmbH. Hidden material defects are claimed in a timely manner, if the notice of defects is sent to Supplier within 7 business days upon discovery. 

(3) European Additives GmbH does not waive its warranty claims by accepting or tolerating any patterns or samples provided.  

 

(4) With Supplier receiving the notice of defects from European Additives GmbH, the statutes of limitations are suspended. If deliveries are replaced and defects are rectified, the warranty period for the replaced and rectified parts starts anew, unless European Additives GmbH had to assume that Supplier did not believe it is obligated to undertake the action, but rather shipped a replacement or rectified the defects out of goodwill or similar reasons. 

 

7 Product Liability

(1) Supplier shall be responsible for all third party claims for personal injury or property damages, which are caused by a product Supplier delivered and which was defective. In addition, Supplier is obliged to indemnify European Additives GmbH from any liability resulting thereof. European Additives GmbH is obliged to recall the product from third parties, if Supplier delivers a faulty product. Supplier shall be responsible for any and all costs associated with the recall action.

(2) Supplier is obliged to take out and maintain a product liability policy with coverage of at least € 5,000,000.00, which does not have to cover the recall risk or any criminal acts or similar damages, unless otherwise agreed in a particular case. On European Additives GmbH's request, Supplier must send a copy of the liability policy.

 

8 Intellectual Property Rights

(1) Supplier is responsible to ensure that no intellectual property rights of third parties are violated in connection with the delivery. This applies to all countries in the European Union, North America, and other countries, where Supplier produces the products or has the products produced.

(2) Supplier is obliged to indemnify European Additives GmbH from all third party claims, against Firma European Additives GmbH for the infringement of intellectual property rights specified in Paragraph 1 and from all expenses European Additives GmbH must pay in connection with these claims. This claim exists regardless of Supplier's fault.

 

9 Confidentiality Agreement

(1) Supplier is obliged to treat strictly confidential all order terms and any and all information and documents (with the exception of publicly accessible information) provided for this purpose for a period of two years following the conclusion of the Agreement and to use this information and documents strictly for the execution of the order. On the request of European Additives GmbH, Supplier will return these immediately to European Additives GmbH after queries are answered or after orders are completed.

(2) Without the prior written consent of European Additives GmbH, Supplier may not refer to the business connection in advertising materials, brochures and similar and Supplier may not exhibit any delivery items produced for European Additives GmbH. 

(3) Supplier shall bind accordingly its subcontractors to this Clause § 10.

 

10 Assignment

Supplier is not authorized to assign Supplier's receivable under this Agreement to third parties. This does not apply to monetary receivables.

 

11 Offer and Conclusion of Contract

(1) Offers of European Additives GmbH are subject to change and non-binding. The Agreement between European Additives GmbH and Customer is only concluded effectively, if European Additives GmbH confirms this in writing or by telex or fax. The same applies to any supplements, modifications and side-agreements.

(2) All performance data such as drawings, illustrations, dimensions, weights or similar are only approximated and non-binding. Information about the characteristics of any kind, patterns and samples are merely reference points about the condition of the goods. These are only precise, if expressly agreed in writing.

 

12 Prices

The prices specified by European Additives GmbH are net prices exclusive of value-added-tax. They are based at freight rates effective at the time.

If public dues are created and raised, and – even if this is delivery freight prepaid – the increase in the freight price will increase the final price accordingly. If it is agreed to deliver freight prepaid, then the agreed price applies only if the product can be transported through unimpeded normal transport option. Furthermore, European Additives GmbH reserves the right to change, specifically to increase the agreed sales price in accordance with any cost changes, which European Additives GmbH incurred up to the time of delivery in connection with the goods to be delivered.  These cost changes may be caused by price changes in material costs, collective work agreements, changes in value-added-tax or any other taxes and duties, an increase in transport and insurance costs as well as further costs, European Additives GmbH incurs when purchasing the primary material of the goods European Additives GmbH has agreed to deliver. On Orderer's request, Supplier agrees to provide proof of these changed costs.

 

13 Period of Delivery and Performance

(1) The dates and deadlines specified by European Additives GmbH are always non-binding, unless otherwise expressly agreed in writing.

(2) Events of force majeure give European Additives GmbH the right to move the delivery date by the period of the hindrance plus an additional reasonable ramp up time. This also applies, if such events happen while a default has already occurred. Force majeure is defined as currency, trade policy and other sovereign measures, strikes, lockouts, interruptions of operating of European Additives GmbH, for which European Additives GmbH is not responsible (e.g. fire, shortage of raw materials or energy), obstruction of transport routes, delays in import/customs processing and all other circumstances, which impair the deliveries significantly or make them entirely impossible.  It is insignificant, whether these circumstances occur at European Additives GmbH, the Supplier or any upstream supplier. If based on the above-referenced events, it becomes unreasonable for one of the contract Parties to execute the Agreement, particularly, if the execution of the Agreement is delayed by more than six months, then this Party can request the rescission of the Agreement.

(3) European Additives GmbH is entitled to ship partial orders and provide partial services at any time.

 

14 Transfer of Risk, Shipping

(1) The risk is transferred to Customer as soon as the shipment was handed to the person executing the transport or if the goods have left for shipment the warehouse of the facility of Firma European Additives GmbH or the place of shipment instructed by the warehouse of European Additives GmbH. The same applies, if the transport is carried out by agents or subcontractors of European Additives GmbH. If shipping becomes impossible without the fault of European Additives GmbH, then the risk transfers to Customer upon notification that the goods are ready to ship.

(2) European Additives GmbH selects the means of transport and type of shipping.   (3) Customer shall also bear the risk for returned goods and for empty containers during return shipment.

 

15 Warranty

(1) Customer must make any claims in writing no later than within four days after the goods are received at the destination. Defects, which cannot be discovered within this deadline despite diligent inspection, must be reported to European Additives GmbH in writing immediately upon their discovery but no later than prior to the end of the agreed or statutory time limit. Any modification or processing of these goods must be stopped immediately.

(2) If the shipment is defective, then Buyer is entitled to a replacement or reduction in price according to the choice of European Additives GmbH. If the replacement, which is shipped, fails, then the Customer can request a price reduction or the Customer can rescind the contract. If the defect is insignificant, then Customer shall only have a right to reduce the price.

(3) If Customer fails to allow European Additives GmbH to inspect the material defect immediately, particularly, if Customer fails to provide the claimed goods or samples immediately, then Customer forgoes all rights for material damage claims.

(4) Only the direct Customer has warranty claims against European Additives GmbH and these claims cannot be assigned.

 

16 Payments

(1) Unless otherwise agreed, all invoices of European Additives GmbH are due and payable without discount immediately upon receipt. Buyer shall be responsible for any payment transaction fees.

(2) If the payment term is agreed, then the date of delivery is the date used to calculate the payment term and each individual interest payment. Each order is an individual business transaction with regard to payment.

(3) Payment is made only, if European Additives GmbH can use the amount. If payment is made by check, then payment is made, once the check is cashed without reservations and conclusively.

(4) Bills of exchange are only accepted in lieu of payment upon separate agreements and they are only applied to payments after they are redeemed. Customer is responsible for all fees in connection with the bills of exchange. The acceptance of bills of exchange does not mean the receivable, for which they are given, is deferred.

(5) If the payment term is exceeded or in the event of default, European Additives GmbH charges late fees of 8 percentage points above the base interest rate, unless an agreement is made on higher interest rates. The claim default is reserved.

6) At the latest 14 days after the due date and receipt of the itemized invoice or receipt of the service, Buyer is in default.

(7) If after the conclusion of the Agreement it becomes obvious that the claim for payment of European Additives GmbH is at risk due to the lack of Buyer's ability to pay, then European Additives GmbH is entitled to the defense of uncertainty in accordance with Section 321 (1) BGB. European Additives GmbH has the right to claim all non-statute barred receivables from the ongoing business relationship with Customer are due and payable immediately without the need for any separate dunning letter. Otherwise, the defense of uncertainty extends to all further outstanding deliveries and services in connection with the business relationship with Buyer. In this case, European Additives GmbH is entitled to claim reasonable collateral.

(8) European Additives GmbH is entitled to assign its receivables from the delivery and service for financing. European Additives GmbH has factored any and all current and future claims under the business relationship including all ancillary rights (such as the retention of title) to Close Brothers Factoring GmbH, Große Bleiche 35-39, 55116 Mainz.

 

17 Retention of Title

The goods are delivered with retained title in accordance with Section 455 BGB and the following additional provisions:

(1) The goods remain the property of European Additives GmbH until payment in full. This includes also all future receivables of European Additives GmbH.

(2) Customers acquisition of title on the goods with retained title if these are processed to create a new item is excluded in accordance with Section 950 BGB. Any modification or processing is deemed on behalf of European Additives GmbH without it creating any new obligations.

(3) If it is processed by Customer with other goods not belonging to Customer, then European Additives GmbH is entitled to a co-ownership on the new item relative to the value the goods with retained title had at the time of processing, which is the initial invoice value. The value relation to the other processed products is determined by the point in time of processing. The same applies to the new items created through processing as it does to the goods with retained title. They are deemed goods with retained title in accordance with these provisions.

(4) Customer's receivables from the resale of the goods with retained title are already assigned at this time to European Additives GmbH, regardless whether the goods with retained title is resold before or after processing and whether these are resold to one or several buyers. The purpose of the assigned receivable is to serve as collateral of European Additives GmbH but only up to the amount of the value of the goods sold with the retained title. If Customer sells the goods with retained title together with other goods not belonging to European Additives GmbH, be it agreed or not agreed, then the purchase price is only assigned up to the value of the goods with retained title, which together with other goods is the subject matter of this purchase agreement or part of the purchased item.

(5) Customer is entitled and authorized to sell and resell the goods with retained title, if the purchase price from this resale transfers to European Additives GmbH in accordance with (4).

(6) Customer is authorized to collect the receivables from the resale despite this assignment. The authorization of European Additives GmbH to collect shall remain unaffected by the Customer's authorization to collect. However, European Additives GmbH will not collect the receivables, as long as Customer complies with Customer's payment obligations, particularly with the payment terms granted. Upon the request of European Additives GmbH, Customer must inform its buyers, particularly the debtors of the assigned receivables and notify debtors of the assignment. This authorization to collect becomes automatically void at the point in time Customer is in arrears with its obligations toward European Additives GmbH, even if at the time, a petition was filed for insolvency or bankruptcy proceedings were initiated or rejected for lack of assets.

(7) The title in accordance with the above provisions shall be retained, even if individual receivables of European Additives GmbH are added to a current invoice and the balance is drawn and recognized.

(8) Customer is not authorized to assign the goods for the purpose of collateral or to pledge of the goods of European Additives GmbH. Customer must notify European Additives GmbH immediately prior to and of any third party enforcement.

(9) If the value of the collateral European Additives GmbH received, exceeds the secured receivables by at least 10%, then European Additives GmbH will release collateral of its choice on Customer's request. 

 

18 Limited Liability

(1) Damage claims for the impossibility of performance, Section 280 BGB, positive breaches of the Agreement, fault at the time the Agreement is concluded and any other breaches of the Agreement and claims for unauthorized acts are excluded against European Additives GmbH and its agents or subcontractors, unless these acts were intentional or they are based on gross negligence. In particular, any consequential damages caused by defects from shipping defective goods are expressly excluded. This exclusion applies particularly to consequential damages for defects from a recall action. European Additives GmbH does not pay for any expenses in connection with a recall action.

(2) Unless otherwise agreed, claims of Customers of European Additives GmbH arising in connection with the delivery of goods or the service cannot claim expire one year after the goods were delivered or the service was provided.  In addition, this time limit applies to such goods, which were used for a structure in accordance with their standard type of use and which have caused the structure to be deficient.

 

19 Additional Outsourcing Terms

If Principal delivers material for processing, then Principal shall be liable toward European Additives GmbH for all damages caused by foreign particles or foreign materials still contained in the material.

 

20 Jurisdiction and Applicable Law

(1) This Agreement is construed and governed by the laws of the Federal Republic of Germany. The application of The Hague’s Uniform Law for the International Sale of Goods and the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

(2) If the contract Party is a businessperson, then the jurisdiction for all disputes shall be the registered place of business of European Additives GmbH.  However, European Additives GmbH is authorized to file a lawsuit within the contract Party's competent place of jurisdiction.

 

As of: 27 June 2016

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