1.1
These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to the sale and delivery of chemical products, raw materials, accessories and to all other agreements made with the Purchaser in connection with orders.
1.2
By accepting the order confirmation or the goods without objection, the Purchaser agrees to these GTC. This shall also apply if it encloses its own terms and conditions of purchase and delivery with its order. The present GTC shall consequently take precedence over other terms and conditions.
1.3
Any terms and conditions of Purchaser are hereby rejected even in the event that they are communicated to CHEMIA in a letter of confirmation or in any other way. Any deviating terms and conditions of the Purchaser shall require the express written consent of CHEMIA.
1.4
Verbal side agreements, deviations from these GTC, as well as additions to or the exclusion of these GTC shall be in writing in order to take legal effect. This shall also apply to the waiver of this written form requirement.
1.5
The German version of these GTC shall be decisive for interpretation, even if translations have been made available to Purchaser or if these have been signed by the Parties.
1.6
If provisions in these GTC or other contractual provisions are or become invalid, the remainder of the contract shall remain valid. The Parties shall be obliged to replace invalid provisions with such valid ones that meet the economic intent of the invalid provisions best.
1.7
Unless special agreements or these GTC provide otherwise, the Swiss Code of Obligations (hereinafter referred to as “SCO”)” shall apply.
1.8
The Incoterms 2010 shall apply.
2.1
The transaction of sales shall be subject to the unhindered production and delivery capabilities of CHEMIA’s suppliers. All operational interruptions and obstructions faced by CHEMIA or its suppliers, such as fire, strike, lockout, shortage of labour, raw materials and fuels or means of transport, traffic interruptions or hindrances, natural disasters, war and unrest, official interventions at home and abroad, import, export or transit bans or failure to issue the necessary licenses as well as any delay or non-performance on the part of CHEMIA’s suppliers and all other events beyond CHEMIA’s reasonable control shall release CHEMIA from the its obligation to fulfil the contract without any liability for damages.
2.2
Technical advice given by CHEMIA, both verbally and in writing, is given to the best of our knowledge, but is to be regarded only as non-binding advice, also with regard to any property rights of third parties. The advice does not release the Purchaser from its obligation to examine the products and verify the advice given by CHEMIA with regard to their suitability for the intended processes and purposes. The use and processing of the products supplied by CHEMIA shall be beyond the control of CHEMIA and shall therefore be the sole responsibility of Purchaser.
3.1
The agreed prices shall be based on the price quotations, exchange rates, freight, customs and insurance rates, dues and other fees applicable on the day of order confirmation.
3.2
All increases in price due to currency fluctuations and changes in the rates quoted or due to impairment of the direct transport routes provided for shall be borne by the Purchaser. Unimpeded navigation is a prerequisite for water transport; low water or flood surcharges, demurrage, general average contributions and other additional costs of water transport shall be borne by the Purchaser.
3.3
The invoicing is determined by the delivered volume (e.g. kilograms / litres / pcs.) and the quantity delivered (e.g. kilograms / litres / pcs.) or the original weight invoiced by CHEMIA shall be decisive for invoicing. For tank wagon transports the railroad official delivery quantity (kilogram / litre) shall be decisive. No reimbursement can be granted for the tank wagons’ incomplete emptying. For orders with a goods value of less than CHF 150.- excluding VAT, a small order flat rate of CHF 50.- will be charged.
3.4
Unless agreed otherwise, CHEMIA’s invoices shall be paid within 30 days from the date of order, strictly net without any deduction.
3.5
The Purchaser shall have an off-set right only in the case of undisputed or legally established claims.
3.6
If payment is not made within this 30-day period (cf. Clause 3.4 above), Purchaser shall be in default immediately. In this case, CHEMIA expressly reserves the right to withdraw from the contract after delivery of the purchased item and to reclaim the item handed over (Art. 214 para. 3 SCO). The Purchaser in default shall unconditionally agree that CHEMIA may immediately retrieve the purchased item and shall grant its organs unhindered access to the relevant storage location for this purpose. The retrieval charges shall be borne by the Purchaser. Upon default of payment all outstanding invoices shall become due and may be claimed by CHEMIA immediately. Existing but not yet delivered orders shall not be fulfilled by CHEMIA as long as the Purchaser is in default. CHEMIA expressly reserves the right to charge interest on arrears. CHEMIA shall also be entitled to the same rights if the Purchaser makes unauthorised deductions.
4.1
The delivery date confirmed by CHEMIA shall be deemed to be an indicative date.
4.2
All consignments shall be transported at the expense and risk of Purchaser, even if carriage paid delivery (DDU / DDP, according to ICC INCOTERMS) has been agreed. Damages and delays occurring during transport shall be the sole responsibility of the carriers involved, who shall be held responsible by the Purchaser upon receipt of the goods, with simultaneous official preservation of evidence.
4.3
If Purchaser is in default of acceptance of the goods, CHEMIA shall be entitled to withdraw from the contract without granting a grace period and to claim damages for non-performance. CHEMIA shall also be entitled to redeliver or cancel, in whole or in part, any quantities not accepted and to claim damages such as interest on arrears.
5.1
The Purchaser shall inspect the goods immediately upon receipt and before using or processing them and shall notify CHEMIA in writing of any defects without undue delay, but at the latest within 8 days upon receipt, and shall send the documents for identification of the goods and defects.
5.2
In case of a justified notice of defects, CHEMIA shall be entitled to deliver replacement goods.
5.3
CHEMIA shall be liable for delivery of the agreed goods in conformity with the sample and customary in the trade. Liability for a specific purpose or successful processing of the goods is excluded. CHEMIA shall only be liable for any reduction in the value of the goods. Any liability exceeding the invoice value of the goods shall be excluded. CHEMIA shall also not be liable for indirect or consequential damages or disadvantages, such as production hindrances, processing costs or similar consequences.
6.1
The place of performance for the sale of the goods shall be the place of destination specified by CHEMIA. The place of performance shall be the place of CHEMIA’s registered office of under commercial law.
6.2
The place of jurisdiction for all disputes arising from these GTC shall be Brugg (Canton of Aargau, Switzerland). However, CHEMIA shall be entitled to invoke any other court having jurisdiction in accordance with the statutory provisions instead of the aforementioned court, in particular the Aargau Commercial Court in Aarau (Canton of Aargau, Switzerland).
6.3
The present GTC shall be governed by Swiss substantive law, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) and any other conflict of laws’ provisions.
