Terms and Conditions

... the Lithium company
  1. Basis of Sale and Formation of Contract

    a) All contracts with self-employed businessmen, pub-lic law entities or special estates under public law (hereinafter collectively referred to as “Customer”) shall be governed exclusively by the following terms and conditions, also where, in the case of future transactions, we have not explicitly invoked them, or where Customer uses different conditions. Such other conditions shall only be regarded as accepted if we have expressly given written confirmation of our acceptance thereof.

    b) Our quotations do not constitute an offer and we re-serve the right to withdraw or revise any quotation at any time prior to our acceptance of Customer’s order.

    c) Customer commits himself to purchase the goods when he places an order. We have the right to ac-cept his offer within two weeks upon receipt. Our notice of acceptance can either be in writing or implicit through the actual delivery of the goods to Customer.


  2. Prices, Terms of Payment

    a) Unless otherwise stated in the notice of acceptance, the prices quoted by us are net amounts covering delivery “ex Langelsheim works”. The value-added tax is not included in our prices and will be charged additionally, based on legal regulations.

    b) If not agreed otherwise, Customer shall pay the pur-chase price within 14 days upon date of invoice. When this term expires, Customer shall be deemed to be in default of payment. If Customer defaults or fails in due payment we, regardless of any other right or remedy available to us, shall be entitled to charge interest at the rate of 8 % per annum above the base rate of the European Central Bank, as from the due date for payment, without issuing a notice of default of payment.

    c) All amounts due under a contract shall be paid in full and Customer shall not be entitled to assert any set-off or counterclaim, including claims based on warranties or guarantees, except where acknowledged by us or stated in a final court deci-sion.

    d) We are entitled to offset payments against the long-est outstanding debt claims.

    e) If, after conclusion of a contract, it becomes known to us that our claim for payment is jeopardized by Customer’s financial condition, all debts outstanding shall be due and payable and we shall be entitled to demand payment concurrent with delivery or that collateral security shall be provided. If Customer fails to respond within reasonable time, we can claim damages and rescind the contract.


  3. Retention of Title (“Eigentumsvorbehalt”)

    a) The purchased goods shall remain our sole property until the complete fulfillment and discharge of all our present and future claims arising from our business relationship with Customer.

    b) Customer undertakes to mark and store the goods owned by us separately (goods subject to reserva-tion). If a third party claims to have a right to the goods subject to reservation or enforces such a claim, Customer undertakes to notify us in writing without delay.

    c) Processing or transforming the goods subject to res-ervation shall be carried out by Customer for us, without obligations thereby arising for us. If Customer combines, mixes, mingles or processes the goods subject to reservation with other goods, or if he transforms them using other goods, we shall become co-owners of the new products in the proportion of the invoice value of the goods subject to reservation to that of the new products. The new products shall be regarded as goods subject to reservation as defined in this retention-of-title clause.

    d) Sale of the goods subject to reservation shall only be permitted in the ordinary course of business. Any other dispositions, in particular but not limited to, pledging or chattel mortgaging of the goods subject to reservation are not permitted. All claims or recei-vables arising for Customer in connection with the goods subject to reservation, whether as a result of resale or on other legal grounds, are hereby fully as-signed to us in advance; in cases of co-ownership the assignment shall be limited to our proportion in the claims or receivables. We herewith accept the assignment. Resale of the goods in the ordinary course of business shall only be permitted subject to customer’s guarantee of assignment. Factoring of the claims or receivables ensuing from the resale of the goods by Customer shall only be permissible subject to our prior written consent.

    e) Customer shall only be authorized to collect the claims and receivables assigned to us in the ordinary course of business and subject to revocation of the authorization by us at any time. Upon request, Customer shall immediately notify his debtors of the assignment. We shall also be entitled - at our discretion - to inform the debtors by ourselves at any time and reserve the right to collect the claims and receivables assigned, if Customer defaults or fails in due payment.

    f) If Customer defaults or fails in due payment, he shall be obliged to provide us with a schedule of the goods subject to reservation which are currently on hand, also details of how far they have been processed, and forward a current schedule of the claims and receivables assigned to us. If insolvency proceedings are instituted against Customer, we shall be entitled to rescind the contract and to demand the immediate return of the goods subject to reservation which have not yet been processed.

    g) If Customer infringes the contract, especially if he defaults or fails in due payment, or neglects a duty pursuant to para. b) or d) of this clause 3, we shall be entitled to rescind the contract and to claim the return of the goods subject to reservation. In such an event, we shall have the right to take immediate possession of the goods subject to reservation and to enter for this purpose Customer’s premises. Customer shall be obliged to provide us with all relevant information about the goods subject to reservation and to hand out to us any documents needed. h) We undertake to release, at Customer’s request, the collateral security to which we are entitled, to the ex-tent that the realizable value of the collaterals ex-ceeds the amount of all collateralized claims by more than 10 %; we shall be free to select the collateral security to be released.


  4. Packing, Cession and Return of Loan Containers, Regulations on Dangerous Goods

    a) Unless specified otherwise, transport packing, sales packing and outer packing will not be taken back by us. Customer shall have to organize himself the proper disposal of the packing at his own expense. This shall not apply to the Loan Containers as speci-fied below.

    b) We shall cede to Customer, on loan, steel bottles, containers, special receptacles and skeleton boxes (hereinafter referred to as “Loan Containers”) which may only be used for transporting the goods sup-plied to Customer until they are emptied in the ordinary course of business. Customer shall store the Loan Containers with utmost care and for safety reasons may not fill them with products other than those supplied by Chemetall. Filling by Customer shall not be permissible. We retain ownership of the Loan Containers. On delivering the goods, we may charge to Customer a security deposit corresponding to the current replacement value of the Loan Containers. Unless agreed otherwise, the Loan Containers shall be returned in empty and serviceable condition within the period specified in the notice of acceptance of the order. Customer shall inform us of the readiness for collection or return delivery in due time in writing. In the event of delayed or omitted information about the readiness for collection or return delivery within the agreed period, we shall be entitled to retain the security deposit partly or entirely. This shall apply analo-gously if Loan Containers are damaged or destroyed while in Customer’s custody. As soon as the Loan Containers are returned to us in proper condition, we shall issue a credit note for the security deposit. For loan containers holding more than 450 liters such as insulating containers, tank containers and road tank-ers, separate agreements shall apply in specific cas-es.

    c) Customer shall adhere to the prevailing regulations applicable to dangerous goods.


  5. Delivery Periods, Delivery Disruptions and Delay

    a) We shall only be obliged to comply with agreed terms of delivery if Customer presents to us on time all necessary documents, permits, licenses and releases to be provided by him and meets all other obligations incumbent on him. Unless such prerequisites are fulfilled on time, the times of delivery will be extended accordingly. This shall not apply if we are responsible for such delay. Even if a fixed time of delivery or a fixed delivery date has been agreed, we shall be granted a reasonable supplementary period of, normally, 4 weeks if we should be in default. Should such a supplementary period elapse in vain, Customer shall declare within a reasonable period if he rescinds the contract on the grounds of delay in delivery with respect to the quantities in delay or if he claims payment of damages in place of performance or if he insists on physical delivery.

    b) Should we be impeded from due delivery as a result of force majeure, the delivery time shall be extended by the period of the disruption of performance caused by such circumstances. Force majeure shall be defined as all those unforeseeable events or such events which – even if they were foreseeable – are beyond our control and whose impact on compliance with the contract cannot be avoided by us with reasonable and equitable efforts. Disruptions of performance attributable to the following circumstances shall likewise be defined as force majeure: aa. breakdown or partial failure of production plants or other operational disturbances, bb. failure to grant, omission, restriction of, or extension of required scope of, authority permits and requirements, cc. delay in the provision with important materials essential to the performance of our supplies and services, dd. non-arrival of deliv-eries of supplies to ourselves ee. difficulties in the procurement of pre-operational materials or operating supplies and in the dispatch and transportation of the goods, ff. strike or lockout, unless we, our directors or those vicarious agents who were assigned to specific management tasks should have caused the aforementioned circums-tances intentionally or by gross negligence. If such disruptions of performance should exceed a 6-month period, both parties shall have the right to rescind the contract on expiry of a reasonable period of notice and subject to the exclusion of any further claims.

    c) The provisions of clause 10 below shall apply to any claims for damages by Customer for delay or other neglect of duty in connection with the delivery of the goods.

    d) Part deliveries and the presentation of invoices for part deliveries shall be acceptable unless they are unreasonable for Customer.


  6. Delivery, Passing of Risk and Shipment

    a) Unless specified otherwise in the notice of accep-tance, delivery shall be deemed to be agreed “ex Langelsheim works”. Incoterms shall apply in the re-spectively latest amendment unless stated otherwise in these Terms and Conditions of Sale.

    b) In all other cases, the goods shipped from the re-spective place of dispatch shall be transported at Customer’s risk even if we have to bear the freight costs.

    c) We are not liable for losses in weight during ship-ment. Any forwarding instructions have to be given with Customer’s order. Unless agreed otherwise, we shall be entitled to determine the mode of dispatch and the routing – without warranty for the fastest transportation. Customer has to pay any additional costs if he demands fast freight or express delivery. The goods will be delivered including packing unless such packing is expressly ceded on loan.


  7. Measure, Weights and Quantities for Delivery

    The prices invoiced shall be determined by the measure, weights and volumes indicated in our shipping / accompanying documents. We shall only be liable for claims regarding measure, weight or volume to the extent that respective notice of claim is asserted in writing and delivered to us within three working days upon receipt of goods at the place of destination.


  8. Quality/Properties of the Goods, Technical Advice, Utilization and Processing, Warranties and Guarantees

    a) Unless otherwise agreed, the quality/properties of the goods shall in principle be deemed to be only those specified in our product descriptions, specifications and labeling. We make no other warranty, express or implied, concerning merchantability or fitness of the goods for a specific purpose.

    b) Our technical instructions and advice regarding use or application, whether verbal, written or implicit from trials are derived from our experience and provided on the basis of our best knowledge, but they are without engagement, and we do not assume any lia-bility for the advice we give our Customer. In particu-lar, we will not take on any liability for recommenda-tions or suggestions made in connection with the construction, modification and operation of Custom-er’s plants. Hence our consultancy in matters of ap-plication technology will not exempt Customer from performing his own inspection of the goods supplied by us with respect to their suitability for his intended procedures and purposes. The application, use and processing of the goods are outside the domain of our control possibilities and are therefore the exclu-sive responsibility of Customer.

    c) Any warranties or guarantees in addition to and beyond the specifications for our goods shall require an explicit separate agreement with Customer for a specific case and must be confirmed by us in writing. Reference to the standards of the German Institute for Standardization (DIN) or comparable standards only apply to the description of the goods and do not constitute nor can they be regarded as a warranty or guarantee commitment.


  9. Customer’s Claims for Defects and Statute of Limitation

    a) The following shall not be considered to be defects or non-conformities: - deficiencies in the quality/properties of the goods or damage occurring after the passing of risk, re-sulting from improper handling, storage or failure to observe handling instructions; - deficiencies in the quality/properties of the goods arising from force majeure, unusual supervening or external events not provided for under the contract, or resulting from use outside the scope of use foreseen under the contract; - deficiencies in the quality/properties resulting from the expiry of the specified shelf life after the passing of risk. Claims for defects are excluded when the goods have been processed, modified or combined by Cus-tomer or a third party, except Customer can demon-strate that there is no causal relationship between the defect and the processing, modification or combination of the goods.

    b) It shall be a condition precedent for claims of Cus-tomer arising from a defect that Customer has duly complied with his duties of inspection and complaint incumbent on him under § 377 HGB [German Com-mercial Code].

    c) Claims for defects shall not be accepted by us in the case of immaterial deviation from the agreed proper-ties of the goods or when the impairment of their functionality is immaterial.

    d) If we are not given reasonable opportunity to verify the claim and test the good that is the object of a complaint, Customer’s warranty claim shall forfeit.

    e) Customer shall bear the full burden of proof for all foundations for a claim in connection with material defects, especially the defect or non-conformity it-self, for the point in time when the defect is detected and for the timely presentation of the notice of defect.

    f) In case that a defect is proved and acknowledged by us, we will, at our discretion, either make good the defect free of charge, or replace the defective goods free of charge against return of the defective goods, except that higher costs may be incurred in connec-tion with such supplementary performance (“Nacherfüllung”), in particular due to transportation, routing, labor and materials, because the goods deli-vered were subsequently moved to a location other than the registered office or establishment of Cus-tomer. If the goods are transported to the destination of their intended use, supplementary performance will be free of charge for Customer.

    g) The remedies according to f) are exclusive unless we fail to remedy the defects or refuse without a reason to attempt the elimination of the defect or the replacement supply or if a reasonable period of time set by Customer for the elimination of the defect or replacement supply has expired unsuccessfully. In those cases, Customer can either reduce the pur-chase price or rescind the contract.

    h) If, whether for a defect of title or material, after failure to eliminate the defect or replace the goods, Custom-er decides to rescind the contract, he shall not be en-titled to any additional claim for damages related to the defect. If Customer chooses to claim payment of damages because of failure to remedy the defect, the goods shall remain in his custody if this is reasonable. Damages shall be limited to the difference between the purchase price and the value of the defective goods, except we should have will-fully caused a breach of contract. The prerequisites for our obligation to pay damages are set forth in the provisions of Clause 10 below.

    i) Recourse claims under § 478 BGB [German Civil Code] shall only take effect to the extent that Cus-tomer has not made any further agreements with his buyer exceeding the statutory provisions governing claims based on defects.

    j) On expiration of a 12-month period after delivery, no further warranty claims can be asserted against us under the contract unless the delivery concerned goods which have been used for the construction of a building in conformity with their intended application and the respective goods have caused defects to the building. In this case, the claims arising from defects will become time-barred within 2 years of the beginning of the statutory limitation period. The limitation period as defined in § 479 para. 2 of the German Civil Code shall remain unaffected. The reduction of the period of limitation shall not apply to claims of Customer arising from injuries to health, body or life nor to claims of Customer on the grounds of other loss or damage attributable to intent or gross negligence.


  10. Exclusion of Liability, Limitation of Liability

    a) Our liability for breach of duty caused by negligence shall be excluded, except where infringements of material contractual obligations, injuries to health, body or life or claims under the German Product Liability Act are concerned. The same shall apply to breach of duty by our vicarious agents.

    b) Claims for compensation of damages arising from breach of material contractual obligations shall, how-ever, be limited to foreseeable direct loss or damage typical of such kind of contract, except our legal rep-resentatives have caused the loss or damage inten-tionally or by gross negligence or in case of physical injury, or when a guarantee was given or liability for a procurement risk was assumed. This shall not ad-versely affect the principles concerning burden of proof incumbent on Customer.

    c) Claims for damages arising from the contract shall become time-barred after one year. This does not apply in case of intentionally tortuous conduct.


  11. Infringement of Third Party Rights

    In the event that goods for delivery to Customer are manufactured or modified according to plans, draw-ings, models, analytical parameters or other specifi-cations of Customer and should third party rights, in particular rights relating to patents and other proprie-tary rights, be infringed as a result thereof, Customer shall, upon our first demand, hold us harmless and indemnify us from any such claims.


  12. Place of Performance, Jurisdiction and Governing Law

    a) The place of performance for Customer’s payment obligations is Frankfurt am Main, whereas our place of performance shall be the place of delivery.

    b) It is agreed that Frankfurt am Main shall be the ex-clusive place of jurisdiction for any disputes arising from or in connection with the contract. This shall al-so apply to disputes originating from claims based on bills of exchange or checks. Above and beyond this, we shall have the right to assert our claims at the general place of jurisdiction of Customer.

    c) All legal relations between Customer and us shall exclusively be governed by and construed in accor-dance with the material laws of the Federal Republic of Germany. Private International Law (conflict of laws) or the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.


  13. Severability and Validity

    If any provisions of the contract including these Terms and Conditions of Sale should be invalid, unenforceable or impracticable either entirely or in part or subsequently become invalid, unenforceable or impracticable, this shall not affect the validity and enforceability of the remaining provisions hereof. In lieu of the invalid, unenforceable or impracticable provisions of the contract or of these Terms and Conditions of Sale. There is a German and an English version of these General Terms & Conditions of Sale of Goods. In cases where there are discrepancies or ambiguities, the German version shall prevail. (Version: 08/2007)