Bitumen

Terms of business

§ 1 General

  1. All offers, deliveries and services provided by Rasco Bitumentechnik GmbH (hereinafter referred to as the 'vendor') take place exclusively on the basis of these general terms of sale and delivery.
  2. Thus these terms of sales and delivery also apply for all future business relationships, offers, deliveries and services, even when they are not once again agreed. 
  3. If the vendor sends altered sales and delivery terms with an express reference to changes, and should the purchaser not object to the changed terms of sales and delivery in writing within 6 weeks, then the altered sales and delivery terms of vendor are considered to be agreed to if the vendor expressly draws attention to this legal consequence when the altered terms of sales and delivery are communicated. 
  4. Different terms of the purchaser's which are not expressly confirmed by the vendor, are not binding for the vendor.
  5. Oral undertakings, or guarantees of properties or product shelf life which deviate from the following terms, require written confirmation by the vendor to be effective.
  6. Our offers are subject to confirmation. In the same way, technical descriptions and other information in offers, brochures and other information are all subject to confirmation.
  7. Should parts of these terms be ineffective, then the remaining terms are unaffected by this.

§ 2 Prices

  1. The prices are calculated in accordance with the price list which is valid on the day of ordering. The prices are exclusive of value added tax, ex works. Agreements deviating from this require our written agreement. In case of special production or small quantities we reserve the right to levy a surcharge.
  2. Discharging, unloading and other costs which are levied in addition to the freight, are also payable by the purchaser in case of carriage paid delivery.
  3. Should the ordered goods be subject prior to delivery to increased public charges (such as duty, taxes) then the vendor is entitled to calculate an appropriate price increase. This also applies for any increase in other auxiliary costs which are paid with the price (such as for example freight).
  4. In addition to the prices given, value added tax will be invoiced separately at the rate valid on the day of delivery.
  5. For the quantity definition for deliveries by means of road tanker, barrels, small containers and other receptacles, the weight /volume measured or weighed in the delivery warehouse/ delivery works of the vendor is definitive.

§ 3 Terms of payment

  1. The invoice sum is, unless otherwise agreed in writing, payable net without deduction within 30 days of receipt. In case of payment within 14 days from the date of delivery, a discount of 2% may be deducted from the value of the good, thus excluding additionally-invoiced container, transport or other costs.  The granting of discount is subject to the previous clearance of all due invoices.
  2. All payments are to be made in Euros to the vendor exclusively. Punctual payment only then occurs when the vendor can dispose of the money with value date on due days in the account defined by the vendor.  In case of delay or missing the due date, the vendor reserves the right, irrespective of other rights, to charge interest at a rate of 8% above the base rate, to declare accounts receivable which are not yet due as such, and to cancel any other deliveries on a credit basis.   
  3. Only authorised agents of the vendor are allowed to receive cash and other means of payment upon presentation of authority to collection.
  4. Offsetting against the purchase price is only permitted if and when the reciprocal claims of the purchaser towards the vendor are uncontested or legally defined. The same applies for the assertion of rights regarding performance refusal and withholding rights. 

§ 4 Delivery

  1. The place of fulfilment is the delivery works or warehouse of the vendor. In case of delivery at the purchaser's request to a destination named by the purchaser, the transportation risk - also for carriage paid deliveries - is transferred at that point in time to the purchaser, through the vendor handing over the goods to the carrier, haulier, or any other person charged with the transport. In case of delays for which the purchaser is responsible, the danger transfers to the purchaser at the time of declaration of readiness to deliver.
  2. The delivery time is only deemed to be be approximately agreed unless the vendor has expressly accepted other arrangements.
  3. The vendor is entitled to make part deliveries and partial services to an appropriate extent. Quantity differences of plus/minus 10% of the ordered quantity are permitted.
  4. Delivery and performance delays which occur after completion of the contract as a result of force majeure and because of other unforeseeable and unavoidable results, which render either unreasonable or impossible the contractual performance for the vendor  - this includes in particular strike, lock-out, official order, etc.- also when they occur at a suppliers' of the vendor, or their sub-supplier, the vendor is not responsible, even in case of binding agreements regarding deadlines and dates. In these cases the vendor is entitled to delay the delivery or service for the duration of the hindrance, in addition to an appropriate starting time. Should the delivery become impossible or unreasonable for one of the parties as a result of such incidents, then both parties are entitled to withdraw from the contract. Should the delivery time be extended, or if the vendor is released from the duty of performance, then the purchaser can make claim for damages.   The vendor may only claim those circumstances named in this paragraph if the purchaser has been informed without delay.
  5. Should the delivery delay last longer than two months, then the party entitled to performance is entitled, after setting a reasonable deadline, to withdraw from the unfulfilled part of the contract. If the delivery time is extended, or the vendor is released from the performance, then the purchaser can make no claims for damages deriving from this.
  6. In case of delivery or performance delay by the vendor or in case of impossibility deriving from the purchaser, then the vendor can withdraw from the contract, taking legal restraints into account. Furthermore, the vendor is liable towards traders only in case of own gross negligence, or that of their agents, in any case the liability is limited to the compensation of direct and typical damages.
  1. In case of collection by a vehicle commissioned by the purchaser, the purchaser has to ensure that
  • the technical fittings on the vehicle are such that orderly and safe loading can take place through the loading equipment of the delivery works;
  • the collection takes place using trained personnel in accordance with the guidelines of the delivery works;
  • the driver confirms the orderly reception of the goods on the delivery note;
  • frost-sensitive goods are protected against frost.
  1. The purchaser has to assure orderly securing of the load, satisfying all relevant regulations. Since due to road traffic laws we can also be made responsible for collection and loading by the purchaser as loader, we are entitled:
  • to check the load safety;
  • in case of justified doubt as to the safety of the load, to prevent or refuse  loading,
  • should the loading already be complete, to prevent the vehicel leaving the premises.

§ 6 Warranty

  1. All products are in accordance with current DIN standards, technical delivery terms, property or similar regulations. Samples provided and typical key figures demonstrate the quality of the goods within the framework of reasonable tolerances. The company reserves the right to make such alterations in the chemical composition which do not affect the quality and usability.
  2. The shelf life last over the period defined in the technical data sheets following delivery, unless the purchaser is otherwise informed in writing. The purchaser has to provide the product-specific storage, especially for frost-protected storage of emulsion products and other frost-sensitive products.  
  3. In case of deliver by road tanker there is no warranty for the maintenance of defined entry temperatures.
  4. Slight differences between the ordered and the delivered product, which do not affect its usability, such as for example colour differences, are not classed as faults.
  5. A duty of warranty for the vendor with regard to faults is excluded if they occur as a result of the purchaser not following the instructions and application procedures which are provided in the technical data sheets with the required degree of care - especially with regard to the necessary preparation work and their completion using products which have been recommended by the vendor.  There is no duty of warranty for the vendor with regard to faults which derive from use of auxiliary materials and admixtures, such as for example additional substances, dilutants, etc., unless the components and auxiliary materials are recommended in writing or permitted by the vendor. In all cases in sections 1 and 2 in § 5 the purchaser has to demonstrate that the faults which appear  are not the result of his measures. 
  6. The buyer, the merchant in the sense of Germany business law (HGB), is to examine the goods for faults without delay upon receipt. Any complaints as a result of obvious and recognisable faults are to be communicated immediately, at the latest however 2 weeks after delivery, in writing, independent of other complaint periods for transport companies. Should the fault only be revealed at a later date, then the complaint has to made in writing within 2 weeks of recognition of the fault. This applies also when a warranty period has been agreed which is longer than the legal requirements.
  7. The vendor is to be given the opportunity to take a sample of the goods which the subject of the complaint, or to be able to convince himself of the orderly taking of samples in accordance with current standards.
  8. In case of justified complaint the vendor is obliged to arrange a follow-up or replacement delivery, or improvement, irrespective of any obligation to liability for non-performance of warranted properties. Should the vendor not fulfil this obligation within a reasonable period, then the purchaser has the right to choose between demanding a reduction of the invoice payment, or rescission of the contract.
  9. In case of justified complaint the vendor is obliged, after making a choice, to arrange a follow-up or replacement delivery, or to make improvement. Should the vendor not fulfil this obligation within a reasonable period defined by the purchaser, then the purchaser is entitled to choose between demanding a reduction of the invoice sum or a rescission of the contract. The right to claim for compensation for damages or expenses exists, apart from in case of breach of of a quality or durability warranty, only in accordance with, and within the limitations of § 8.

      

    § 7 Technical application support advice

    With regard to technical application advice, application of guide formulations or instructions for use by the purchaser issued by the vendor, the purchaser also bears the risk for the success of the works. Any claims against the vendor by the purchaser with in accordance with § 5 of these terms are unaffected by this.

    § 8 Limitation of liability

    1. The right to claim for damages through the breach of contractual or additional legal obligations, through fault at time of completion of the contract is excluded. This does not apply in case of gross negligence by the vendor or his agents. In case of breach of major contractual obligations the vendor is liable also for slight negligence, limited however to foreseeable, direct, and contract-typical damage.
    2. As far as the liability of the vendor is excluded in accordance with paragraph 1, this applies also to the benefit of the vendor's staff in the case of indirect claim by the purchaser.
    3. Previously stated exclusions or limitations of liability do not apply for personal injury, or for damage to privately-used items in accordance with product liability legislation, or other implementation laws for EU guidelines for product liability in other EU states.

    § 9 Transport and shipping materials

    1. In the absence of other agreements the vendor selects by his own judgement the type of packaging, containers, transport and forwarding. 
    2. Road tankers, containers, drums and small receptacles are to be handled professionally and with care, to be emptied completely, in as far as they are not non-returnable receptacles, and to be closed well after use. Under no circumstances may they be used for other purposes. The danger of loss or damage of transport and forwarding means prior to their return is in every case born by the purchaser. In case of their loss or damage the vendor is entitled to demand the payment of repair/ replacement costs by way of compensation. The vendor has no right of retention of the transport and forwarding means.
    3. In the case of free delivery in road tankers, the vehicles are made available for the normal period and usual emptying time without additional charge. Should this time be exceeded in accordance with §421 Abs.3 HGB a reasonable delay charge (demurrage) will be levied.
    4. If the delivery is in returnable containers, then these are to returned to the vendor as fast as possible, at the latest 6 weeks following receipt of the goods, empty and carriage paid.  The purchaser is liable for any damage caused to borrowed containers that he may be responsible for.

    § 10 Title retention

    1. The vendor retains ownership of the delivered goods until full payment of the purchase price has been received. If the purchaser is a merchant, the vendor additionally reserves the right to retain ownership of the goods until such time as all claims against the purchaser which may be outstanding from the business relationship are completely fulfilled.  This applies also for future receivables.
    2. In case of longer lasting payment delay, serious breach of the contract, or major worsening of his financial circumstances the purchaser is obliged, without a period of grace or declaration of withdrawal by the vendor, at the demand of the vendor to return all reserved goods that may be in his possession at his own expense to the departure plant or warehouse without delay. 
    3. Any working or processing of the reserved goods is deemed to be a commission of the vendor, without obligations ensuing for the latter. In case of connecting, mixing, or processing of the reserved goods with other items, the vendor is entitled to the share of ownership in the new item in proportion to the invoice value of the reserved goods to the value of the other goods used. Should the purchaser acquire complete ownership of the new item, he now grants the vendor shared ownership in proportion to the invoice value of the reserved goods to the value of the new item. The purchaser undertakes to keep safe the new item with due business diligence for the vendor.
    4. Until revocation the purchaser may sell the goods which are the property or co-property of the vendor within orderly business transactions, but not use them as security or as pledges. In case of further sale of the reserved goods the purchase price claim transfers to the vendor by means of security until complete payment of the vendor's claims from goods deliveries has been made. Should the further sale take place together with other items, possibly following connection, mixing, or blending, this advance assignment applies only to the amount of the invoice value of the relevant reserved goods.
    5. If the reserved goods, after processing, connection, mixing, or blending, are built into the property of a third party, or the vendor loses his property rights on the goods in connection with another legal business of the purchasers (e.g. when used to fulfil service or works performance), then the claims from the legal business transfer as security to the vendor in the amount of the invoice value of the reserved goods used.
    6. If the securities exceed the claims by the vendor by more than 20% then he is obliged to release the excessive proportion of the securities to the purchaser at upon request.
    7. The purchaser is to inform the vendor immediately in writing if the goods in the reserved goods or shared property of the vendor, as well as claims in advance assignments of the vendor, are subject to enforcement. He has to inform the enforcement organ and the enforcement creditors without delay that the goods are still reserve property or shared property of the vendor, or that the claim has been transferred to the vendor. 

    § 11 Miscellaneous