General Terms and Conditions of Supply of ecoMotion GmbH
General Terms and Conditions of Supply of ecoMotion GmbH
Clause 1 Scope of the Terms and Conditions
(1) These General Terms and Conditions constitute the sole basis for the deliveries, services and quotations provided by ecoMotion in the course of transactions with other businesses (section 14 of the German Civil Code (BGB)). These Terms and Conditions shall therefore also apply to all future business relations with the same businesses, even if they are not expressly agreed again. These Terms and Conditions shall be regarded as accepted upon receipt of the goods or services at the latest. Any confirmation by the customer that includes a reference to its own general terms and conditions or purchasing terms and conditions is hereby rejected. ecoMotion rejects any inclusion of the customer’s general terms and conditions.
(2) All agreements made between ecoMotion and the customer for the purpose of performing this agreement must be in writing. Documents sent by fax are considered to be in written form. The requirement for the written form may only be waived by a written agreement.
Clause 2 Quotation and conclusion of contract
(1) Quotations from ecoMotion are subject to change. If the customer accepts them, the contract shall be concluded only upon written confirmation by ecoMotion.
(2) Only agreements made in writing form part of the contract. Oral agreements require written confirmation by ecoMotion in order to be effective. The agreements are then concluded with the content as confirmed in writing by ecoMotion unless the customer objects to said confirmation in writing within three days of receipt (or 24 hours if transmitted by fax). Saturdays, Sundays and general German public holidays do not count towards this time period.
Clause 3 Prices
(1) The agreed prices are net prices which are subject to statutory value-added tax and, in the case of delivery of goods, additionally to the excise taxes levied on the goods unless expressly agreed otherwise.
(2) Unless otherwise agreed, prices are ex ecoMotion’s production facility or distribution warehouse.
Clause 4 Delivery
(1) Unless otherwise agreed by contract, delivery is ex ecoMotion’s production facility or distribution warehouse. Delivery costs shall be borne by the customer at the normal market rate without liability on the part of ecoMotion for ensuring the lowest freight costs.
(2) Delivery dates and delivery deadlines are only binding if agreed in writing. Even where deadlines and dates have been agreed with binding effect, ecoMotion is not responsible for delays in delivery and performance due to force majeure or due to other events that make delivery materially more difficult or impossible for ecoMotion, provided the impediment is not only temporary. This includes but is not limited to strikes, lock-outs, official directives, breakdown in machinery, etc., including if such events occur at ecoMotion’s suppliers or their sub-suppliers, as well as cessation of performance or delay in performance on the part of suppliers or sub-suppliers or of service providers required for production or due to lack of raw material supplies for which ecoMotion is not responsible. Any such delays entitle ecoMotion to postpone delivery or performance by the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the unfulfilled portion.
(3) If the impediment lasts longer than three months, the customer shall be entitled to withdraw from the contract with respect to the unfulfilled portion after a reasonable grace period. In the event of an extended delivery time or if ecoMotion is released from its obligations, the customer shall not be entitled to claim damages in this respect. ecoMotion may only rely on the circumstances listed above if it notifies the customer without delay.
(4) ecoMotion shall be entitled to make partial deliveries and to partial performance at any time unless the partial delivery or partial performance is obviously of no interest to the customer. ecoMotion may invoice partial deliveries and partial performance separately. If ecoMotion is unable to fully satisfy customers’ rights to receive delivery due to lack of raw material supplies, it shall be entitled to reduce its supply obligations accordingly without this giving rise to any right on the part of the customer to withdraw from the contract. If the sale of a ship takes place during the delivery period, the customer agrees that ecoMotion may bundle the goods available to it such that the ship sale can be completed on time.
(5) In the case of delivery on call, including requests for partial quantities, or if collection of the goods has been agreed, including successive collection of partial quantities, the customer shall make the call or collection at the latest within 10 days of being requested to do so by ecoMotion, otherwise the customer will be in default of acceptance and the agreed legal consequences will apply (Clause 4, para. 7). If it has been agreed that partial quantities can be requested for delivery or collected by the customer and the size of the individual partial quantities has not been agreed, ecoMotion shall determine them at its equitable discretion.
(6) ecoMotion’s ability to meet its delivery and performance obligations depends on the customer fulfilling its obligations properly and on time.
(7) The customer is in default of acceptance if despite the purchase obligation becoming due and ecoMotion sending a reminder the customer does not accept and pay for the goods within three working days of receiving the reminder. If the customer is in default of acceptance, ecoMotion shall be entitled to demand compensation for the damages incurred. Without prejudice to the assertion of higher damages, ecoMotion may demand from the customer for the duration of the default of acceptance compensation of 0.5% per week or part of a week of default of acceptance, but no more than a total of 5% of the agreed price for the goods in respect of which the default of acceptance applies. When default of acceptance occurs, the risk of accidental deterioration and accidental loss of the goods passes to the customer. If the customer is in default of acceptance, ecoMotion may at any time withdraw completely or partially from the contract and is released from its delivery obligation to this extent. Alternatively, during the default of acceptance ecoMotion may at any time place the goods in storage at the customer’s expense or sell them. In the event that the goods are sold, the customer must then without prejudice to any further damages compensate ecoMotion for the shortfall compared with reselling the relevant quantity at the current spot market price. This spot market price shall be determined by ecoMotion by approaching two market participants (for example: biodiesel, oil, seed, animal feed and mineral oil dealers, biodiesel, oil, seed and animal feed brokers, oil companies) with whom ecoMotion maintains regular business relations, while applying the due care of a prudent and conscientious businessman (determining the price). ecoMotion shall be entitled to claim from the customer the difference between the price agreed with the customer and the price determined as above as lump sum compensation.
(8) By way of derogation, the following applies to the supply of rapeseed oilcake: the contracts are fulfilled by collection from the oil mill. Customers receive a collection number and collection date from ecoMotion in good time ahead of collection. If the goods are not collected on the collection date, ecoMotion may, at its discretion and from the 4th day after the collection date, sell the collection quantity to another customer and then reduce the customer’s contract quantity or store the goods itself or place them in storage with third parties at the customer’s expense until collection by the customer or until they are sold elsewhere. The cost of self-storage is EUR 1.00 net per tonne weight and week or part of a week. The cost of external storage will be passed on to the customer together with an administrative surcharge of 1% of the gross invoice total charged by the external storage firm; this cost is payable by the customer. If the goods are sold to another customer, para. 7 sentences 7 to 9 shall apply accordingly. On the 4th day after the collection date, the risk of accidental loss and the obligation to take out insurance also pass to the customer.
(9) If goods are ordered that may be subject to energy tax, the customer must state in writing in good time prior to delivery whether they are to be used for a purpose that triggers energy tax liability. The customer must provide proof to ecoMotion of holding a permit to purchase goods free of energy tax in good time ahead of delivery. The customer is liable to ecoMotion for the existence and effectiveness of the permit.
Clause 5 Transfer of risk
Risk passes to the customer as soon as the shipment has been handed over to the person carrying out the transport or it has left ecoMotion’s production facility or distribution warehouse for the purpose of shipment. If shipment is postponed at the customer’s request, risk passes to the customer upon notification that the goods are ready for shipment.
Clause 6 Product quality and warranty
(1) The contractual goods are manufactured in accordance with good practice. ecoMotion shall only warrant additional quality characteristics, features or specific fitness for purpose if agreed expressly in the contract.
(2) The figures determined by ecoMotion on calibrated measuring equipment or in accordance with recognised laboratory methods are binding with regard to the quantities and dimensions of the contractual goods and their components. The sample retained by ecoMotion shall be the sole basis for subsequent assessments. The customer may at its own expense be present in person or be represented by expert persons at all assessments of quantities and dimensions of the contractual goods. During the warranty period, the customer may also at any time request part of the retained sample as required for testing. No customer claims shall be possible for shortfalls of 2% or less.
(3) The customer’s obligation to inspect the goods and notify any defects shall be governed by sections 377 and 378 of the German Commercial Code (HGB), subject to the requirement that defects identifiable on thorough examination must be notified by the customer to ecoMotion in writing within two working days of receipt of the goods. If the goods are processed, mixed or passed on, they are regarded as having been approved by the customer within the meaning of the aforementioned legislation.
(4) ecoMotion warrants the agreed compliance with the applicable regulations and approvals, in particular with regard to certificates, sustainability attestations and national recognition systems (such as “double counting”) as at the date of concluding the contract. In the event of changes to regulations and approvals occurring after conclusion of the contract but prior to the transfer of risk, ecoMotion shall make an effort to adapt the goods, employing the due care of a prudent businessman.
(5) The warranty period is 6 months from the date of delivery. If a defect notification is found to be justified, ecoMotion may at its discretion and expense either remedy the defect or deliver defect-free goods. If this fails, the customer may demand an appropriate reduction in the remuneration or, if the defect is substantial, demand rescission of the transaction. ecoMotion shall only be required to pay compensation under the conditions set out in Clause 7 and to the extent indicated therein.
(6) The customer may not assign warranty claims.
Clause 7 Liability
(1) Compensation claims against ecoMotion are excluded regardless of the type of breach of duty, including unlawful acts, unless ecoMotion acted with wilful intent or gross negligence.
(2) In the event of breach of material contractual obligations, ecoMotion shall be liable for negligence but only up to the amount of the foreseeable damage. No claims for loss of profit, compensation claims by third parties and claims for other indirect and consequential damages shall be possible unless a feature guaranteed by ecoMotion has the specific purpose of safeguarding the customer against such damages.
(3) The limitations and exclusions of liability set out in paragraphs 1 and 2 do not apply to claims resulting from fraudulent conduct on the part of ecoMotion or, in the case of liability for warranted characteristics, to claims under the Product Liability Act (Produkthaftungsgesetz) and claims resulting from injury to life, body or health.
(4) Insofar as ecoMotion’s liability is excluded or limited, this also applies to salaried employees, workers, representatives and vicarious agents of ecoMotion.
Clause 8 Occupational and product safety
The customer agrees to advise every person who handles or uses the goods, or has access to the goods or to whom the customer sells the goods (in whole or in part), of the warnings, information or recommendations contained in the product data sheets or safety data sheets provided by ecoMotion, in other documentation relating to the goods or on the labelling or packaging of the lubricants or to which reference is made therein. The customer agrees to comply with these warnings, information or recommendations and to ensure that the above-mentioned persons comply with them. The customer furthermore agrees to observe all the obligations in relation to health, safety and the environment contained in the legislation of the countries in which the goods are sold or handled.
Clause 9 Payment
(1) Unless otherwise agreed, ecoMotion’s invoices shall be payable immediately upon issue of invoice and without deduction. Notwithstanding any provisions to the contrary stipulated by the customer, ecoMotion shall be entitled to offset payments first against the customer’s older debts and will inform the customer about the nature of the offsetting applied. If costs and interest have already accrued, ecoMotion shall be entitled to apply the payment to the costs first, then to the interest and finally to the principal amount.
(2) A payment is considered to have been made only when the amount is available to ecoMotion. Payment by cheque is considered made when the cheque is irrevocably cashed.
(3) If the customer is in default, including without a specific reminder starting from the 11th day after invoicing (Clause 9, para. 1), ecoMotion shall be entitled to demand interest at 9 percentage points above the base rate from the relevant date onwards. ecoMotion shall be permitted to provide evidence of further losses caused by the default.
(4) If ecoMotion becomes aware of circumstances which suggest that the customer’s creditworthiness is impaired, in particular if a cheque from the customer is not honoured or the customer suspends payments, or if other circumstances become known to ecoMotion which suggest that the customer’s creditworthiness is impaired, such as a substantial reduction in or cancellation of the customer’s credit limit with a recognised credit insurer, ecoMotion shall be entitled to call in the entire remainder of the debt. In this event, ecoMotion shall also be entitled to demand advance payments or collateral before making any further deliveries. If ecoMotion cannot obtain credit insurance cover from a recognised credit insurer used by ecoMotion in respect of the customer’s payment obligation arising from the contract, ecoMotion shall be entitled to make delivery dependent on advance payment of the purchase price or the provision of a directly enforceable, unconditional and time-unlimited first-demand guarantee from a major German bank.
(5) Even if notifications of defects or counterclaims are asserted, the customer shall only be entitled to setoff, retention or reduction if the counterclaims have been declared legally valid by a court of law or are undisputed. The customer shall nonetheless be entitled to retention on account of counterclaims arising from the same contractual relationship. The assignment of rights and the transfer of the customer’s obligations arising from this contract shall only be effective with the consent of ecoMotion.
(6) In the case of direct debit payments, the customer is required to issue a binding direct debit mandate. ecoMotion shall be entitled to send the customer a pre-notification within less than 14 days of the due date.
Clause 10 Tax guarantee
(1) The customer guarantees to ecoMotion that both it and the buyer are not in breach of any tax regulations and/or disposition provisions that are to be observed when supplying tax-free or tax-privileged products in relation to delivery based on a permit held by the customer or on a general permit.
(2) In the case of VAT-free delivery (involving collection) to any loading location in the EU, the customer guarantees that the delivery item will be transported to a Member State other than that of the loading location.
(3) In the event of a warranty claim, the customer undertakes to indemnify us in full and on first demand in respect of all third-party claims, including but not limited to all taxes, customs duties and other levies and tax fines which are triggered, that it incurs in this context through lodging legal remedies.
Clause 11 Reservation of title
(1) Until settlement of all claims against the customer (including all outstanding balance claims on the current account) to which ecoMotion is entitled on any legal basis whatsoever now or in the future, ecoMotion shall be granted the following collateral, which it will release on request at its own discretion insofar as the value of the collateral exceeds the claims by more than 20% on a non-transient basis.
(2) The goods shall remain the property of ecoMotion. Processing or transformation shall invariably be carried out on behalf of ecoMotion as the manufacturer but without creating any obligation on ecoMotion. If the (co-)ownership held by ecoMotion lapses through combining or mixing, it shall already be regarded as agreed that the customer’s (co-)ownership of the new goods shall pass to ecoMotion in proportion to its value (invoice value). The customer shall store the (co-)owned goods for ecoMotion free of charge. Goods in which ecoMotion is entitled to (co-)ownership are referred to in the following as “goods subject to reservation of title”.
(3) The customer shall be entitled to process and sell goods subject to reservation of title in the ordinary course of business, provided it is not in default. Pledges or transfers by way of security are not permitted. The customer shall already assign to ecoMotion in full by way of security the claims arising from resale or any other legal reason (insurance, unlawful act) in respect of the goods subject to reservation of title (including all outstanding balance claims on the current account). ecoMotion grants the customer revocable authorisation to collect the receivables assigned to ecoMotion for ecoMotion’s account in its own name. This authorisation to collect receivables can only be revoked if the customer does not duly meet its payment obligations.
(4) In the event that third parties access goods subject to reservation of title, including but not limited to seizures, the customer will advise of ecoMotion’s ownership and notify the latter without delay in order that ecoMotion can enforce its ownership rights. If the third party is not in a position to refund ecoMotion for the court costs or out-of-court costs incurred in this context the customer shall be liable for these costs.
(5) If the customer acts in breach of contract, including but not limited to default of payment, ecoMotion shall be entitled to withdraw from the contract and to demand the return of the goods subject to reservation of title.
Clause 12 Termination of contract
Without any liability to the customer, ecoMotion shall be entitled to terminate the contract with immediate effect or to suspend deliveries, if
(a) an application for the opening of insolvency proceedings against the assets of the customer is made by the latter (own application), insolvency proceedings are opened against the customer’s assets or the opening of insolvency proceedings against the customer’s assets is rejected due to a lack of assets (comparable proceedings, including those in other jurisdictions, shall count as insolvency proceedings);
(b) a significant deterioration in the customer’s financial situation or in the value of any collateral provided by the customer for the fulfilment of its obligations occurs or appears imminent (from the seller’s viewpoint), if this jeopardises fulfilment of the customer’s obligations arising from this contract even if the collateral is realised,
(c) the customer has not made a payment more than 14 days after the due date.
Clause 13 Compliance with trade sanctions
The customer undertakes not to resell the goods to
(a)a restricted party or for a machine that is owned by a restricted party or is controlled or used by such restricted party, or otherwise for the benefit of a restricted party, or
(b)any natural person or legal entity where the customer suspects or is aware that they will resell the goods (directly or indirectly) to a restricted party or for a machine that is owned by a restricted party or is controlled or used by such restricted party, or otherwise for the benefit of a restricted party.
For the purposes of this provision, the term “restricted party” means a person, company or a country (a) with which trade (or supplying for own use) is prohibited due to a sanction or restrictive measure or in accordance with the provisions of any other law adopted by the United Nations, the European Union, the United Kingdom or the United States of America or (b) to which goods originating from the United States may not be delivered.
Clause 14 Code of Conduct/anti-corruption, money laundering and ethical compliance
In the context of this agreement and the transactions carried out under it, the customer undertakes to comply with all laws, provisions, regulations, decrees and/or official decisions on combating money laundering and corruption applicable in the United Kingdom, the United States of America and the countries to which the goods are supplied in connection with the agreement or in which they are marketed or from which they are supplied or distributed. In the context of this agreement and the transactions carried out under it, the customer warrants and undertakes that neither the customer nor its owners, directors, officers, employees or any other person acting on its behalf has directly or indirectly made, offered, promised or approved any payment or any form of benefit to (i) a public employee, (ii) a director, officer or employee of ecoMotion or any of its affiliated companies, (iii) a political party, a functionary of a political party or a candidate for public office, (iv) a representative or agent of one of the above-mentioned persons or (v) any other person or company and will not make, offer, promise or approve any such payment to bring about or influence a formal action or to obtain an unfair advantage for acquiring or maintaining a contract if such payment or benefit would infringe the principles of the applicable anti-corruption laws or would not be compatible with such legislation, in particular the laws of the United Kingdom, the United States of America and the countries to which the goods are supplied in connection with the agreement or in which they are marketed or from which they are supplied or distributed. For the purposes of this section the term “public employee” means any minister, deputy minister, manager, civil servant, director, officer or employee of a public authority or department, agency or office of a public authority and/or a state-owned company or a company in which the government holds a majority of the shares or a controlling stake and/or an international governmental organisation. This term also includes employees of the police and the armed forces as well as any person who acts in a public, administrative or judicial function for or on behalf of such a public authority, department, agency or office of a public authority, company or international governmental organisation. The customer provides an assurance that it has properly maintained its books, records and accounts in the context of this agreement and the transactions carried out under it and will continue to do so and that said books, records and accounts appropriately and accurately reflect in adequate detail the payments made, expenses incurred and assets sold. The customer furthermore provides an assurance that it has introduced and maintained an internal control system for financial reporting that is suitable for ensuring proper approval, record keeping and proper reporting of all transactions and is also suitable for preventing, detecting and deterring violations of the anti-corruption laws in the United Kingdom, the United States of America and the countries to which the goods are supplied in connection with the agreement or in which they are marketed or from which they are supplied or distributed. The customer also agrees to permit ecoMotion and/or its duly authorised representative(s) and/or its designated auditor(s) to audit and/or inspect said books, records and accounts and the internal control system for financial reporting at any time during the term of this agreement and within a reasonable period of time after its termination if this could be relevant for a review of the extent to which the customer has complied with the provisions contained in this section. The customer undertakes to cooperate fully in any such inspection and/or audit (this includes in particular granting access to rooms and, where appropriate, answering any reasonable questions that may arise). The customer represents and warrants that it has no knowledge or has no reason to believe that the revenue, funds or assets that are or will be the object of a transaction under this agreement (1) originate or will originate from an action that is deemed unlawful under applicable laws or are related thereto or (2) that there is an intention in this regard to commit, support, or promote a breach of the law, in particular a violation of tax law, customs law or public levies law. The customer confirms that it has read the SARIA Group’s corporate compliance policy (available at www.saria.com) and undertakes to comply with the relevant corporate compliance principles of the SARIA Group in all material respects in the context of this agreement and the transactions carried out under it. In addition, the customer shall ensure that its employees are aware of the SARIA Group’s policy.
Clause 15 Applicable law, jurisdiction, partial invalidity
(1) These Terms and Conditions and all legal relations between ecoMotion and the customer shall be governed by the law of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
(2) The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Selm.
(3) Should any provision in these Terms and Conditions or a provision in the context of other agreements be or become invalid, this shall not affect the validity of the other provisions or agreements.