The General Terms of Sale and Delivery of corosys chemical & pharma technology GmbH & Co. KG („Sales Conditions“) are published in German language, and, for convenience purposes also in English. However, solely the German language version of the Sales Conditions is valid and binding.
corosys chemical & pharma technology GmbH & Co. KG as supplier accepts orders for the manufacturing and/or delivery of parts, systems, production of other works and provision of other services. The acceptance of any order is subject tot he following conditions.
1. Range of application
(1) Our Sales Conditions apply to all future and current business relationships to customers („Customers“) that qualify as a merchant (“Kaufmann”), a business (“Unternehmer”, § 14 BGB) and corporate bodies under public law.
(2) Our Sales Conditions apply to the initiation, the conclusion and the execution of contracts relating to the manufacture, the sale, the delivery and the commissioning of movable goods („Products“) irrespective of whether we manufacture the products or whether we source Products or services from suppliers (§§433, 650 BGB). Unless agreed otherwise, the Sales Conditions apply in the form valid on the date of the Customers order, but in any case in the last version transmitted in writing to the Customer, and apply to subsequent contracts of similar nature without an obligation on our side to make explicit reference to these Sales Conditions.
(3) Our Sales Conditions apply exclusively. By ordering and accepting the Products delivered by us, the Customer confirms his agreement to the exclusive application of our Sales Conditions. Deviating, conflicting or supplementing terms and conditions oft he Customer will only form part of our contract if and only apply to the extent we have agreed expressly in writing. This applies under all circumstances, even if we make delivery without reservations to a Customer despite positive knowledge of his terms and conditions
(4) Individual agreements between the Customer and us (including side letters, supplements and amendments) take in any event priority over these Sales Conditions. The content of such individual agreement is (subject to contradictory evidence) determined by a written contract or our written confirmation.
(5) Any legally relevant declaration or notification in relation to the contract (such as a notice of deficiency, a claim for damages, rescission or claim for loss) to us shall be made in writing (e.g. letter, E-Mail, Facsimile). Special formal regulations and other evidentiary requirements in particular in case of doubts over the capacity of the declaring person remain unaffected.
(6) Any reference made in our Sales Conditions to statutory provisions are of a declaratory nature and serve as a clarification. Even without such clarification, statutory provisions apply to the extent that they are not directly modified or excluded by the Sales Conditions.
2. Offer and formation of contract
(1) All our offerings are non-binding and subject to confirmation, even if we have handed over catalogues, technical documention (such as drawings, diagrams, calculations or references to DIN norms), other product descriptions or documentation, to which we claim property or intellectual property rights.
(2) Any documentation attached to our offering such as illustrations, drawings, weight or dimensional specifications, process flowsheets and the respective descriptions are only binding within customary tolerances, unless agreed otherwise in writing.
(3) If we prepare additional documentation (such as drafts, constructional drawings, designs and calculations) at the Customers request, and if the Customer subsequently does not award the contract, we may charge fees based on our applicable cost rate.
(4) A product order by the customer constitutes a valid and binding offer. Unless expressly stated in such order, we may accept such offer within 14 days after receipt.
(5) The Customer warrants that any documents presented in connection with an order do not violate intellectual property rights of a third party and by presenting the documents agrees to indemnify and hold us harmless of any third party claims relating to or in connection with the violation of such third party rights.
(6) The acceptance of the Customers offer as well as any supplement, amendment or side-agreement will be confirmed by us in writing (e.g. an order confirmation). Oral confirmations beyond the scope of the written confirmation are only valid and binding if confirmed in writing.
3. Term of Delivery and Delay
(1) We confirm a term of delivery upon acceptance of the Customers order or agree it individually with the Customer. In any other case, the term of delivery is ca. 6 months after confirmation of the Customers order.
(2) If we cannot comply with an agreed delivery date due to a delay outside of our control (e.g. a service or product is not available), we will notify the Customer immediately of the delay and the new expected delivery date. Is the product or service not available on such new delivery date, we may rescind the contract in part or in full; any consideration already made by the Customer will be refunded in due course. For the avoidance of doubt, a case of non-availability for the purposes of this clause exists in particular, if we have hedged our delivery obligation to the Customer with a supplier who fails to make delivery or makes late delivery due to other reasons than his or our default or if we are, as the case may be, not obliged to procure the service or product.
(3) Our default due to late delivery is determined in accordance with the statutory provisions. In any case, a written reminder must be received from the Customer. If we are in default due to a late delivery, the Customer may claim liquidated damages for the late delivery at a rate of 0.1% per completed calendar week of the net value (delivery value), but in no event more than 5% of the delivery value of the service or product delivered late, subject however to us furnishing proof that the Customer no damage or a substantially lower damage than the liquidated damages.
(4) Any other rights of the Customer according to Nr. 10 of these Sales Conditions and our statutory rights, in particular regarding an exclusion of our obligation to perform under the contract (e.g. due to impossibility or unreasonable demand for performance or supplementary performance) remain unaffected.
4. Delivery, Passing of Risk, Default of Acceptance
(1) Unless agreed otherwise, delivery is made ex works; our place of business is the place of performance and the place of any supplementary performance. Upon a Customers demand and expense, products may be shipped to another place of destination (sale by delivery). In the absence of any agreement to the contrary, we have the right to select the shipping method (in particular the transport servicer, dispatch route and packaging).consignment agent.
(2) the risk of accidental loss or damages to the product passes over to the Customer upon handover or, if the Customers orders a system installation or commissioning service, upon delivery to the installation site. In case of a sale by delivery (“Versendungskauf”), the risk of accidental loss or damages to the product as well as the risk of any delay passes over to the Customer upon handover to the carrier, the transport agent or any other person or entity commissioned with the transport. To the extent an acceptance process has been agreed, it will determine the passing of risk. or the acceptance process, the relevant statutory provisions for contracts for work and labor (“Werkvertrag”) apply.
A Customers delay in acceptance constitutes a valid and binding handover or, as the case may be, acceptance.
(3) We may charge liquidated damages including supplementary cost (e.g. for warehousing) for any delay in acceptance, any omission of cooperation or any other delay attributable to the Customer. We will charge liquidated damages at a rate of 0,1% of the order value in Euro per calendar day, commencing with the intended delivery date, or, in the absence of a fixed delivery date, with our notice to the Customer that the products are ready for dispatch.
(4) We reserve the right to prove higher damages and other statutory claims (in particular for damages due to additional expenses, appropriate reimbursements and termination); the amount of liquidated damages will be applied against such claims. The Customer has the right to prove that we suffered lower or no damages than the liquidated damages.
5. Inspection and Approval
(1) In case of a contract for works and labor („Werkvertrag”), each party may request a formal inspection and approval of the completed work.
(2) The parties will create a transcript over the result of the inspection and approval incl. potential deficiencies or defects signed by both parties.
(3) Insignificant deficiencies or defects are immaterial for and are no cause for the refusal of the approval.
(4) If we have agreed a proof of performance, the Customer is obliged to accept it upon our offer.
(5) If the proof of performance is succesful, the Customer is obliged to approve the work.
(6) If the proof of performance is unsucessful, but the Customer nevertheless comissions and operates the product or system, then the date of commissioning is deemed to be the date of approval. Such approval will not relive us from the obligation to submit a proof of performance.
(7) If the Customer does not accept our demand to inspect and accept the product or system without having asserted substantial deficiencies or defects in writing, the product or system is deemed to be approved either onthe day of commissioning by the Customer, or in any case no later than 1 month after our demand to accept. Our demand to inspect and accept will make specific reference to this legal consequence.
6. Purchase Price and Payment Terms
(1) In the absence of an individual agreement to the contrary, the purchase price will be the valid and current price upon our acceptance of the offer. The price will be ex works and plus value added tax at the applicable rate.
(2) In case of a sale by delivery (Versendungskauf), the Customer will bear the shipping cost ex works plus the cost for transport insurance requested by the Customer. At our choice, we may elect to charge the actually incurred cost for shipping and packaging. In the absence of such election, a lump-sum charge as quoted by us in our offer (excluding transport insurance) will apply. Other charges, such as import duties, charges, taxes and other fees will be borne by the Customer.
(3) The purchase price is due and payable without deductions within 14 days from the date of delivery and invoice or from the date of approval. We may elect at any time to deliver only against partial or full prepayment. Such election will be declared no later than with our order confirmation.
(4) With the expiry of the payment term as described above, the Customer is in a payment delay. The purchase price will bear interest during the delay period at the applicable statutory rate. We may claim additional damages for delay. Our right to overdue interest (§ 353 HGB) remains unaffected
(5) The Customer may only set off or withhold payments to the extent that his counterclaim has been established by a binding ruling or is uncontested. The Customer may however raise his rights as permitted by these Sales Conditions if a product or service is defective or incomplete.
(6) If our right to payment the purchase price is at risk (e.g. due to a bankruptcy of the Customer) due to inadequate economic capacity oft he Customer, we may exercise our statutory rights to decline performance and – after a cure period, if required – rescind the contract (§ 321 BGB). If the contract stipulates the manufacturing of non-exchangeable products (individualized produts), we may rescind the contract immediately. The statutory rules on the dispensability of a cure period apply.
(7) We may pass on to the Customer additional charges due to increased sourcing or labor cost due to a collective agreement during the production and before delivery that were incurred no earlier than 4 months after the order date, In case of a cost increase after the order date of more than 5%, we may rescind the contract.
(8) Installation and commissioning by our staff will be charged according to demand, observing legal and collectively agreed working hours. We may make use of third party servicers for installation and comissioning.
(9) Work outside the scope of the Customers order, in particular preparatory and supplementary work, is not included in the agreed purchase price and will be charged base on time sheets at the applicable daily rates. Charges will include stand by hours during an installation or commissioning not attributable to us.
7. Retention of Title
(1) We reserve all property rights and retain title in any product sold by us to a Customer until all our current and future claims under the purchase contract and under our business relationship with the Customer (the secured claims) are paid in full.
(2) Any products sold and subject to this retention of title may be pledged or otherwise assigned to a third party, unless full payment of the secured claim has been made, A Customer must notify us immediately of the opening of insolvency proceedings or about any seizure or garnishment of our products by third parties.
(3) In case of a breach of contract by the Customer, including, but not limited to non- or late payment, we may execise our statutory rights to rescind the contract and/or exercise our security interest by demanding the return of our product. Such a demand for return does not constitute an implicit declaration to rescind the contract; we may demand return oft he product while reserving the right to rescind the contract. In case of non- or late payment, we may exercise the aforementioned rights only if we have unsuccessfully demanded payment within a reasonable period, or if such demand is not required by statutory law.
(4) Until further notice per (c) below, the Customer may sell and/or process products subject to a retention of title in his ordinary course of business. In case of such a sale or processing, the following provisions apply:
(a) The retention of title extends to endproducts resulting from the processing, commingling or combination of our products at the full value of such endproduct (for which we are deemed tob e the manufacturer). If ownership rights of third parties are created due to the processing commingling or combination with third party products, we will acquire co-ownership in such endproduct in proportion to the invoiced value of the processed, commingled or combined products. Furthermore, the provions on retention of title apply to the endproduct likewise.
(b) The Customer assigns to us effective today all future receivables from the sale of a product delivered by us or an endproduct created with our product in full or, as the case may be, in the amount of our co-ownership share (as defined in (a)). We acceot the assignment. The obligations of the Customers under Section (2) apply to the assigned receivables respectively.
(c) We authorize the Customer to collect the receivables . We will not collect any receivables as long as the Customer honors his payment obligations to us, is not otherwise in default and we do not exercise our right under section (3). If we do exercise such right,the Customer will upon our demand disclose to us the assigned receivables and the respective obligor, hand over the corresponding documentation, make available all information for the collection of the receivables and assign the obligors of the assignment. In such a case, we may at any time revoke the authorization of the Customer to sell and/or process products subject to a retention of title in his ordinary course of business.
(d) To the extent the realizeable value of the collateral exceeds our claims by more than 10%, we will, upon the Customers demand, release collateral of our choice.
8. Performance of corosys
(1) We will deliver drawings related to our products or installed systems only to the extent required for the operation and maintenance of such product or system by technically trained and instructed staff.
In case of systems, documentation typically includes:
– flow diagram (taking into account potential revisions during the project phase)
– layout plan with parts list (as corrected and agreed with the Customer)
– Documentation in German or English at the Customers choosing
(2) Additional documentation will be separately charged. Such additional documentation typically includes:
– changes to the flow diagram or the installation plan instructed by the Customer after approval of the initial flow diagram or installation plan
– Additional documentation (e.g. isometric projection of piping)
– official licenses
– written certification of material testing or certificate of origin
– Examination of welds (e.g. via x-ray or endoscope)
9. Customer obligations for installation and commissioning
(1) The Customer will, at his own risk and expense, provide the following:
– before we commence our services, prepare the installation site according to our specifications and furnish all material to be supplied by the Customer, protection of the installations site from environmental conditions.
– Dry, frost, theft and damage protected storage facility suitable for MSR devices where the equipment and material delivered by us may be stored even in case of a disruption of the as well as suitable facilities for the preparation and assembly in the immediate vicinity of the installation site.
– Support staff as requested by us and free of charge to us. Support staff will follow our instructions during the installation process. We may reject unqualified support staff. Liability for the suppocHolger, ellensrt staff provided by the Customer remains with the Customer, the supervision of such support staff will be undertaken by us.
– Provision free of charge of, and, as the case may be, including assembly and disassembly of scaffolding, lights and heating, ventilation, fuels, water, electricity, clean high pressure air as well as all other necessary supplies at the installation site.
– Free of charge Unloading of installation materials and the special equipment to be provided by us and transportation to the storage facility and/or the installation site.
– Preparatory construction and other supplies must conform to the specifications as defined on a case by case basis and meideSorry, ade available by us to the Customer.
– provision of suitable space for our personel, which can be locked, has adequate lighting and heating and sanitary facilities.
– Provision of all equipment and operating reseources for the comissioning and operation of the system.
– broadband internet for use by our staff and, if ordered, to connect the products delivered by us.
10. Customers warranty claims
(1) In case of material or legal defects (including wrong or insufficient delivery, faulty installation or improper installation instructiuon) the Customer has the rights under the applicable statutory provisions unless otherwise specified below. In any case, the statutory provions specifically applicable to the delivery of unprocessed goods to a consumer (Verbraucher) , even if this consumer has processed the goods subsequently (§§ 478 BGB, supplier recourse). Claims under the supplier recourse provisions are excluded, if the faulty products have been processed by the Customer or a third party, e.g. by way of installation into another product.
(2) Our warranty is based on the agreement on properties and condition of the product or system. The agreement on properties and condition consists of the product descriptions and specifications agreed between the parties at the formation of the contract. The Customer may not bring a warranty claim based on defects that do not materially impair the value or suitability of the product or system for the use known to us,
(3) To the extent that we have not agreed on properties and condition of the product, the presence of a defect will be determined by application of the relevant statutory provisions (§ 434 1 S. 2 and 3 BGB). We do not assume liability for content of public statements of the manufacturer or third parties (e.g. advertisements), if the Customer has not explicitely advised us at the time of order that such statement has been the deciding factor for the purchase decision.
(4) We will accept claims only if the Customer has observed the examination and reproval obligations (§§ 377, 381 HGB) as required by statutory law. In case of parts or other products used in assemblies or otherwise processed, such examination and reproval has to occur bevor such assembly or processing. If, upon a delivery, an examination or at any later date, a defect becomes apparent, the Customer is obliged to notify us thereof immediately in writing. In any case, the Customer will notify us in writing of any apparent defect no later than 10 business days after receipt, and in case of hidden defects no later than 10 business days after the examination of the product. If the Customer fails to properly examine the product or notify us in writing of a defect or within the aforementioned period, our liability for any such defect is excluded under the applicable statutory provisions.
(5) If we delivered a defective product or system, we may chose to cure the defect either by subsequent improvement (“Nachbesserung”) or by delivery of an identical product free of defects (“Ersatzlieferung”). Our statutory right to decline curing a defect remains unaffected.
(6) We may make any cure for defects subject to payment of the full payment of the purchase price by the Customer. The Customer may, at his discretion, retain part of the purchase price adequate to the defect
(7) The Customer will provide appropriate time and opportunity to cure the defect, in particular hand over the rejected product for inspection. If we choose to the defect by delivery of an identical product free of products, the Customer will return the rejected product as required under statutory provisions. Any cure of defect will not include the removal of the rejected product from nor the installation of the replacement product, if an installation of the product was not in the scope of the underlying order.
(8) We will carry, or reimburse the Customer for, the expenses for inspection and cure, in particular transport, travel, labor and material cost as well as removal or installation cost according to the applicable statutory provisions if a product is in fact and law defective. In any other case we will charge to the Customer all cost related to the unjustified warranty claim (including inspection and transport cost), unless the it was impossible for the Customer to recognize the absence of a defect in fact and law.
(9) In case of urgency, for example to preserve operational safety or to avert disproportionate damages, the Customer may remediate the defect and demand from us compensation for the objectively justified expenses. The Customer is obliges to notify us immediately in writing of such remediation. The right to remediate is excluded, if we have the right to reject a demand for cure under the applicable statutory provisions.
(10) If an attempt to cure a defect has failed or if a reasonable period set in writing by the Customer has expired or if the setting of such a period is dispensable under statutory law, the Customer may rescind the contract or declare a reduction of the purchase price. This does not apply, if the defect is immaterial.
(11) The Customer may not demand damages or compensation for incidental expenditures due to defective products, except as described in § 10 and such liability is (unless explicitly required by law) limited to the order amount.
11. Misc. liabilities
(1) Unless stated otherwise in these Sales Conditions our liability for breach of duty, whether contractual or otherwise, is determined by the applicable statutory provisions.
(2) Our liability in tort for damages is – irrespective of the cause in law – restricted to wilful intent and gross negligence. To the extent not limited by law (e.g. diligence of a prudent businessman; immaterial breach of duty), our liability for negligent breach of duty is restricted to a) damages from death or bodily harm, b) damages directly related to the breach of a material contractual obligation (defined as an obligation, whose performance is material precondition for the proper execution of the contract, and on whose observance the Customer typically may or will place reliance); in each case, our liability is limited to the reasonably foreseeable and typical damages.
(3) The limitations of liability described under (2) also apply to a breach of duty by or for the benefit of persons, for whom we carry vicarious liability. They do not apply, if we have fraudulently concealed a defect or expressly guaranteed specific properties or conditions of a productas well as for claims of the Customer under the law on product liability (Produkthaftungsgesetz).
(4) Where a breach of duty does not comprise a defect, a Customer may only rescind or terminate a contract for breach of duty, if we bear liability for that breach of duty. The Customer may not terminate the contract at will (§§ 650, 648 BGB). Furthermore, the pre-conditions and consequences and effects defined by law apply.
(1) Any documents, drawings, designs, weight or measurement calculations, analysis of materials, process flow sheet as well as all associated descriptions etc. provided by us in connection with a request for proposal, an offer or the execution of a contract are confidential and may not be published, copied or made available directly or indirectly to third parties or be used for any other purpose than the originally intended use (in particular not as basis for a request for proposal, for subsequent deliveries or additional works).
(2) We retain ownership and intellectual property in all documents delivered by us. All physical or electronic copies must be handed over or deleted immediately upon our request.
(1) The general limitation period for all claims based on material or legal defects is (in alteration of § 438 Abs. 1 Nr. 3 BGB) one year, commencing with the delivery of the respective product. If we have agreed to an acceptance, the limitation period commences with acceptance.
If the product constitutes a work of construction (“Bauwerk”) or an attachement or object typically used for a work of construction and which has caused the defect in the work of construction (Baustoff), the general limitation period corresponds to the statutory limitation period (§ 438 Abs. 1 Nr. 2 BGB) of 5 years commencing with delivery. Further special statutory rules on limitation (e.g. § 438 Abs. 1 Nr. 1, Abs. 3, §§ 444, 445b BGB) apply.
(3) The aforementioned rules on limitiation periods also apply to our liability to the Customer for damages under contract and in tort based a defective product, unless the application of the statutory rules on limitation (§§ 195, 199 BGB) lead to a shorter limitation period.
However, the Customers claims for damages under § 11, section 2 S. 1 and S. 2(a) as well as under the law on product liability (Produkthaftungsgesetz) are always subject to the respective statutory limitation periods.
14. Choice of Law and Venue
(1) Any contract between us and the Customer, including these Sales Conditions are subject to the law of the Federal republic of Germany, excluding international contract law such as the United Nations Convention on Contracts for the International Sale of Goods.
(2) For any dispute directly or indirectly related to a contractual relationship between us and a Customer, who qualifies either as a merchant (“Kaufmann”), a business (“Unternehmer”, § 14 BGB) or a corporate bodies under public law, exclusive national and international jurisdiction shall be exercised by the courts of Frankfurt am Main. We may however choose to bring legal action against a Customer before the competent courts at the place of performance as defined in these Sales Conditions or in a separate contractual agreement, or, as the case may be, before the competent courts at the place of general jurisdiction of the Customer. Compulsory statutory provisions, in particular with respect to exclusive jurisdiction, prevail.