1 Scope

1.1 All offers, deliveries and other services (including consulting services, information and similar) of Hammonia Oleochemicals GmbH ("HOC") vis-à-vis companies, legal entities under public law and special funds under public law (each a "Customer") shall be made exclusively on the basis of these General Terms and Conditions of Sale and Delivery ("Terms and Conditions").

1.2 Supplementary, conflicting or deviating terms and conditions of the Customer which HOC does not expressly acknowledge in writing shall not apply. This shall also apply if HOC does not expressly object to them. Even if HOC refers to a letter that contains or refers to terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.

1.3 These Terms and Conditions shall also apply to all future business relations with the Customer, insofar as they are of the same or a related nature. This shall apply even if HOC does not expressly refer to them in subsequent contracts (i.e. in particular in the case of orders placed by telephone). The unconditional acceptance of the ordered goods by the Customer shall in any case be deemed to be an acknowledgement of these Terms and Conditions.

1.4 The Terms and Conditions are available on the HOC homepage on the Internet (www.hammonia-oleo.com). In this respect, the objection of non-access or non-knowledge on the part of the Customer cannot be raised.

1.4 Individual agreements and contract amendments made in individual cases shall take precedence over these Terms and Conditions. Subject to proof to the contrary, a written contract or the written confirmation of HOC shall be authoritative for the content of such agreements.

1.6 Legally relevant declarations and notifications by the Customer with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements remain unaffected.

 

2 Offers, product description, scope of delivery, contract

2.1 Offers made by HOC are always non-binding and subject to confirmation, unless HOC has expressly designated them as binding. HOC may accept orders and contracts within 14 calendar days of receipt. The conclusion of the contract and other agreements shall only become binding upon written confirmation by HOC.

2.2 The subject matter of the contract is exclusively the sold product with the properties and characteristics as well as the intended use according to these Terms and Conditions, the contract or, if applicable, the product description attached to the order confirmation as an annex. Oral promises made by HOC prior to the conclusion of the contract shall not be legally binding and oral agreements between the parties shall be replaced by the written contract unless it is expressly stated in the contract that they shall continue to be binding. Other or more extensive properties and/or characteristics or a purpose of use beyond this shall only be deemed to have been agreed if they have been expressly confirmed by HOC in writing.

2.3 Information provided by HOC on the object of the delivery or service (e.g. weights, dimensions and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately applicable, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service.

2.4 Public statements, recommendations or advertising do not constitute a binding statement of the quality of the goods.

2.5 HOC's written order confirmation shall be decisive for the scope of delivery. The weight quantity agreed with the order confirmation may be under- or exceeded by HOC by up to 2 % and, if "approx." has been agreed, by up to 5 %. The weight determined at the place of performance shall be decisive for the determination of the weight. If HOC and the Customer have agreed on the delivery quantity as a volume, the provisions for the weight shall apply accordingly.

2.6 Deviations that are customary in the trade and deviations that occur due to legal regulations or improvements to the goods are permissible insofar as they do not impair the usability for the contractually intended purpose.

2.7 HOC reserves ownership and copyrights to cost estimates, offers, drawings and other documents and information; they may only be used for the purposes of the contract and may not be made accessible to third parties without the prior written consent of HOC. At HOC's request, the Customer shall return these items in full to HOC and destroy any copies made if they are no longer required by the Customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

 

3 Prices

3.1 The prices quoted are in EURO plus VAT. They only apply to orders that are fulfilled in a single delivery run. The prices apply per unit of quantity according to the written order confirmation, in the absence of special agreements ex works/warehouse including loading and packaging.

3.2 Additional or special services shall be charged separately. In the case of export deliveries, the prices are exclusive of customs duties, excise duties as well as fees and other public charges ("Public Charges"). If, after the conclusion of the contract, a legal norm is announced according to which the Public Charges change with effect for the agreed delivery period or part of this period, and if HOC's expenses demonstrably change as a result, the prices shall change accordingly. HOC shall notify the Customer of the new prices without delay.

3.3 In the event that the applicable price under this contract, the freight charge agreements or terms of payment, or the possibility of making such increases or changes to the freight charge agreements or terms of payment, are changed to the detriment of HOC by law or official order or are declared inadmissible for HOC, HOC may withdraw from the contract without compensation with regard to the part not yet performed.

 

4 Delivery, delivery time

4.1 Deliveries shall be ex works/warehouse unless otherwise agreed in writing.

4.2 HOC's delivery obligation is subject to correct and timely self-delivery, unless HOC is responsible for the incorrect or delayed self-delivery.

4.3 Information on delivery times is approximate unless otherwise agreed with the Customer. The delivery period begins with the dispatch of the written order confirmation, but not before the Customer has provided all the prerequisites for the proper execution of the contract (e.g. documents, approvals and any agreed down payment) or fulfilled the Customer's contractual obligations or within the period specified in the order confirmation.

4.4 If shipment has been agreed, the delivery period shall be deemed to have been met upon handover to the forwarding agent, carrier or other third party commissioned with the transport.

4.5 Early delivery before the delivery date is permissible after notification with a reasonable lead time by HOC.

4.6 The agreed delivery dates are binding for the Customer. If a call-off of the goods by the Customer for certain specified months or weeks is agreed in the contract, this deadline shall also be binding for the Customer. Therefore, in the case of contracts with continuous delivery, HOC must be notified of the call-off and allocation of approximately equal monthly quantities no later than six weeks before the beginning of the respective delivery month. If call-off or allocation is not made in due time, HOC shall be entitled, after setting a reasonable grace period, at its discretion to allocate and deliver the goods itself or to refuse performance of the overdue part of the contract and to claim damages.

4.7 HOC shall not be liable for any failure or delay in performing its obligations under the supply agreement to the extent that such failure or delay results from any act, event or circumstance (to the extent not caused by HOC or its agents or employees) which (a) (exercising reasonable skill, care and diligence) are unforeseeable (or, foreseeable but unavoidable) and beyond the reasonable control of HOC, (b) are not due to the acts, omissions, errors or negligence of HOC and (c) result in HOC being unable to perform its obligations under this supply agreement in whole or in part ("Force Majeure Event"). Subject to (a) to (c) above, Force Majeure Events may include, but are not limited to: war (whether or not war has been declared), hostilities, revolution, rebellion, insurrection against any authority, riot, terrorism or foreign embargoes. Theft, vandalism or acts committed by or on behalf of a criminal organisation are not considered to be Force Majeure Events to the extent they are insurable; unusually severe floods, unusually severe lightning, earthquakes, tornadoes, typhoons, hurricanes, unusually severe landslides, volcanic eruptions, external fires and objects striking the earth from outer space (such as meteorites), quarterns, and other events. meteorites), quarantine restrictions, epidemics, pandemics (such as COVID-19) or similar events of force majeure; and local, regional and national strikes, work stoppages, lockouts or similar labour or industrial actions or disputes, other than those affecting only HOC's employees and/or subcontractors, and raw material shortages. HOC shall not be responsible for the aforementioned Force Majeure Events even if they occur during an already existing delay. HOC shall notify the Customer of the beginning and end of the Force Majeure Event as far as possible.

4.8 If Force Majeure Events make it significantly more difficult or impossible for HOC to deliver or perform and the hindrance is not only of temporary duration, HOC shall be entitled to withdraw from the contract. In the case of Force Majeure Events of temporary duration, the delivery or performance periods or dates shall be extended by the period of the hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to HOC.

4.9 In other cases of default in delivery or performance, the Customer shall only be entitled to withdraw from the contract relating to the delayed individual delivery after the fruitless expiry of a reasonable grace period to be set by the Customer. HOC shall only be liable for the damages incurred if HOC is responsible for them. The limitations of liability pursuant to Clause 9 apply.

4.10 HOC shall be entitled to make partial deliveries and render partial services if these are of interest to the Customer in accordance with the purpose of the contract and the Customer does not incur any significant additional expense as a result.

4.11 If HOC is in default with a partial delivery or service, the Customer may only assert claims with regard to this partial delivery or service, unless the partial delivery or service performed is of no interest to him.

4.12 In the event of default of acceptance on the part of the Customer, the statutory provisions shall apply.

 

5 Payment, default of payment, set-off, retention, assignment

5.1 Unless HOC has confirmed otherwise in writing, invoices shall be paid without any deductions within 30 calendar days of receipt of the invoice. The date of receipt by HOC shall be decisive for the date of payment. In the event of late payment, the Customer shall pay interest on arrears at a rate of 9% above the base interest rate. The assertion of further damages in the event of default shall remain unaffected.

5.2 The Customer shall not be entitled to offset payment claims of HOC with disputed counterclaims or counterclaims that have not been legally established or to assert rights of retention. This shall not apply to counterclaims arising from the same order under which the relevant delivery was made. Discounts and other deductions, unless agreed in writing, are excluded.

5.3 HOC shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of HOC's outstanding claims by the Customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardised.

5.4 Claims arising from the contract with HOC may not be assigned to third parties unless otherwise agreed in writing.

 

6 Shipping, transfer of risk

6.1 The risk of accidental loss or accidental deterioration of the goods shall pass to the Customer in the event of shipment, irrespective of the burden of costs for shipment, at the latest when the goods are handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other person or institution charged with the transport. If collection of the goods by the Customer or his agent has been agreed, or if dispatch of the goods is delayed due to a circumstance caused by the Customer, the risk shall pass to the Customer from the day on which the goods are ready for dispatch or collection and HOC has notified the Customer of this. This shall also apply if partial deliveries are made. If HOC is involved in any form of freighting, HOC shall act exclusively as the Customer's agent.

6.2 Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by HOC after the transfer of risk, the storage costs shall amount to 0.25 % of the invoice amount of the delivery items to be stored per expired week. HOC reserves the right to claim and prove further or lower storage costs.

6.3 The Customer shall notify HOC of the desired mode of dispatch immediately after conclusion of the contract. If this notification is not made no later than 7 calendar days after conclusion of the contract, HOC shall be free to select the shipping route and means of transport.

6.4 Subject to Clause 9, HOC shall not be liable for any difficulties (damage, delay) arising during transport, and any reloading and/or re-dispatch costs resulting from missing or incorrect information about the destination shall be borne by the Customer, even if the costs of dispatch are exceptionally to be borne by HOC as agreed. HOC shall choose the packaging of the goods at its own discretion.

6.5 Insurance will not be covered by HOC without a corresponding written order from the Customer.

6.6 In all other respects, the Incoterms® in their latest version shall apply in addition.

 

7 Retention of title

7.1 HOC shall retain title to the goods until all its claims against the Customer arising and accruing from the business relationship have been settled ("Retained Goods"). In the event of several claims or current account, the retention of title shall apply as security for the balance claim, even if individual deliveries of goods have already been paid.

7.2 Processing or transformation of the Retained Goods shall be carried out for HOC as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating HOC. If the Retained Goods are processed with goods of other manufacturers, HOC shall acquire co-ownership of the new item in the ratio of the invoice value of the Retained Goods to the invoice value of the other processed goods at the time of processing. If the reserved goods are combined or inseparably mixed with goods of other manufacturers, HOC shall acquire co-ownership of the new item in the ratio of the invoice value of the Retained Goods to the invoice value of the other combined or mixed goods. If the Customer's item is to be regarded as the main item in the case of combination or mixing, it shall be deemed to have been agreed that the Customer shall transfer co-ownership of the new item to HOC on a pro rata basis. The Customer shall hold the co-ownership thus created in safe custody for HOC.

7.3 In the event of conduct by the Customer in breach of the contract, in particular in the event of default in payment, HOC shall be entitled to withdraw from the contract and to demand the return of the Retained Goods after having set a reasonable deadline. The Customer shall be obliged to surrender the goods. HOC shall be entitled to realise the Retained Goods after taking them back. After deduction of a reasonable amount for the costs of realisation, the proceeds of realisation shall be set off against the amounts owed by the Customer to HOC. HOC further reserves the right to claim damages.

7.4 If the Customer is a recognisable reseller, he shall be entitled to process and sell the Retained Goods in the ordinary course of business as long as he is not in default. The Customer hereby assigns to HOC, by way of security, all claims arising from the resale or any other legal reason (insurance, tort) with regard to the goods subject to retention of title. HOC hereby accepts this assignment. The Customer shall not be entitled to dispose of the Retained Goods in any other way without the written consent of HOC; in particular, the goods may neither be pledged nor assigned as security.

7.5 If the Customer includes the claim from the resale of the goods in a current account relationship existing with his customers, the current account claim is assigned in full. After balancing, the recognised balance shall take its place, which shall be deemed to be assigned up to the amount of the original current account claim. HOC also now accepts the assignment of these claims. Insofar as the Customer resells the Retained Goods of title on credit, he shall be obliged to secure HOC's rights upon resale.

7.6 HOC revocably authorises the Customer to collect the claims assigned to HOC for its account in its own name. HOC's authority to collect the claim itself shall remain unaffected, but HOC undertakes not to collect the claim as long as the Customer duly meets its payment obligations. The authorisation to collect shall expire if the Customer does not properly fulfil his payment obligations, gets into payment difficulties, compulsory enforcement measures are taken against him or judicial insolvency proceedings are opened against his assets or the opening of such proceedings is rejected for lack of assets.

7.7 HOC may demand that the Customer informs it of the assigned claim and its debtors, provides all information required for collection, hands over the associated documents and informs the debtors of the assignment. If the reserved goods are resold together with other goods that do not belong to HOC, the Customer's claim against the buyer shall be deemed assigned in the amount of the delivery price agreed between HOC and the Customer.

7.8 If there is unauthorised access by third parties to the goods subject to retention of title (e.g. in the case of seizure), the Customer shall point out HOC's ownership and notify HOC immediately so that HOC can enforce its ownership rights. The goods shall be excluded from the transfer of ownership by way of security of an entire stock of goods by means of an express declaration to the secured party.

7.9 HOC undertakes to release the securities to which it is entitled to the extent that their realisable value exceeds the claims to be secured by more than 10%; in this context, HOC shall be responsible for selecting the securities to be released.

7.10 The Customer is obliged to insure the goods subject to retention of title sufficiently against the usual risks at his own expense.

7.11 If the law of the country in which the delivered goods are located does not permit retention of title, but allows HOC to reserve other rights to the delivery item, HOC may exercise all rights of this kind. The Customer shall be obliged to cooperate in such measures as HOC wishes to take to protect its right of ownership or in lieu thereof any other right in the goods.

 

8 Warranty

8.1 The Customer shall only be entitled to warranty claims if he has complied with his inspection and complaint obligations pursuant to § 377 HGB (German Commercial Code). In particular, the Customer must inspect the goods immediately after delivery and take samples of the goods. Samples must be taken in such a way that representative average samples are taken from each chamber of the transport container. The Customer must give written notice of defects which can be detected during a commercial sensory inspection immediately after unloading has been completed, but within 2 working days at the latest. The Customer shall notify HOC in writing of any hidden defects in the goods without delay, at the latest, however, within 3 working days after discovery of the defect.

8.2 In the event of a valid notice of defect, HOC shall be entitled to have the condition of the goods recorded by a neutral expert. Claims due to defective goods shall lapse if the Customer does not give HOC or its sub-suppliers the opportunity to inspect or have inspected the defects reported on site and does not provide samples on request without delay, but within 3 working days at the latest. All claims based on defects shall further lapse if the processing of the goods is not discontinued immediately after the defects are discovered or if HOC’s goods are not omitted from mixing with goods from other manufacturers until the goods have been expressly released by HOC or its sub-suppliers. At the same time, the Customer shall name to HOC the purchasers of the products to which the goods have been delivered. In the event of a justified and timely notice of defect, the Customer shall be entitled to subsequent performance during the warranty period; HOC shall have the right to choose the type of subsequent performance - removal of the defect or delivery of a defect-free item. If the subsequent performance fails or if further attempts at subsequent performance are unreasonable for the Customer, the Customer shall be entitled to a reduction in price or to withdraw from the contract.

8.3 The Customer shall only be entitled to assert claims for damages on the grounds of a defect under the conditions set out in Clause 9 if subsequent performance has failed or HOC refuses to provide subsequent performance. The Customer's right to assert further claims for damages under the conditions set out in Clause 9 shall remain unaffected.

8.4 Warranty claims of the Customer shall become statute-barred within one year, beginning with the transfer of risk. This also applies to claims for compensation for consequential damages. This limitation period shall not apply insofar as longer periods are prescribed by law in accordance with §§ 438 para. 1 no. 2 (buildings and items for buildings), 478, 479 (supplier recourse) and 634 a para. 1 no. 2 BGB (German Civil Code) (construction defects), as well as in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by HOC and in the event of fraudulent concealment of a defect.

8.5 If recourse claims against HOC arise from a claim against the Customer by its buyer or a third party, HOC shall at most be liable as if it had sold directly to the end buyer or third party. If a claim is made against the Customer by a buyer or third party on account of the defectiveness of the goods sold by HOC, the Customer shall be obliged to notify HOC thereof in writing without delay. In this case, the Customer shall not be entitled to conclude any agreements on liability with the buyer or third party without HOC's consent. Such consent may not be unreasonably withheld. If the Customer is sued by its buyer or the third party, the Customer shall give HOC the opportunity to participate in the legal dispute.

8.6 The Customer shall assume liability for ensuring that no third party property rights are infringed by its use or further processing or delivery of the goods supplied by HOC, provided that HOC is not responsible for the infringement of property rights.

8.7 Only the Customer shall be entitled to claims against HOC for defects and such claims shall not be assignable.

 

9 Liability

9.1 HOC shall be liable for any damage incurred only to the extent that such damage is based on a breach of a material contractual obligation or on intentional or grossly negligent conduct on the part of HOC, its executive bodies, legal representatives, employees or other vicarious agents. If an essential contractual obligation is breached due to slight negligence, HOC's liability shall be limited to the foreseeable damage typical for the contract. An essential contractual obligation is an obligation of which the fulfilment is a prerequisite for the due performance of the contract and on the fulfilment of which the Customer regularly relies and may rely.

9.2 Any further liability for damages is excluded. Liability for culpable injury to life, body or health in accordance with the statutory provisions shall remain unaffected. This also applies to mandatory liability under the Product Liability Act.

9.3 Furthermore, HOC accepts no liability for consequences caused by improper use of the goods or failure to comply with any usage guideline provided by HOC.

 

10 Place of performance

Unless otherwise agreed in writing, the place of performance shall be the registered office of HOC (Hamburg).

 

11 Applicable law, arbitration tribunal

11.1 These Terms and Conditions and the legal relationship between HOC and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods (CISG) or similar international agreements.

11.2 All disputes arising out of and/or in connection with the contract between HOC and the Customer and/or these Terms and Conditions shall be finally settled in accordance with the arbitration provisions of the German Association of Wholesale Traders in Oils, Fats and Oil Raw Materials (Deutscher Verband des Großhandels mit Ölen, Fetten und Ölrohstoffen e.V.). (GROFOR) to the exclusion of the ordinary course of law. The place of arbitration shall be Hamburg.

 

12 Salvatory clause

Should individual clauses of these Terms and Conditions be or become ineffective or invalid, this shall not affect the effectiveness or validity of the remaining provisions. An ineffective or invalid provision shall be deemed to be replaced by such provision which comes closest to the economic purpose of the ineffective or invalid provision and is legally effective or valid.

 

Effective February 2022