General Terms and Conditions

of ELASKON Sachsen GmbH & Co. KG for Special Lubricants

1. General Provisions

Our General Terms and Conditions apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions, unless we have expressly agreed to their validity in writing. This also applies if we do not expressly object or if we carry out deliveries or accept payments unconditionally.
In business transactions between entrepreneurs, legal entities under public law or special funds under public law and ELASKON Sachsen GmbH & Co. KG, our current General Terms and Conditions apply both to the present contract and as a framework agreement for all future contracts of the same type with our customers. All deliveries, including proposals, consultations and other ancillary services (hereinafter collectively referred to as “Deliveries”), are based on these conditions unless specific conditions apply to certain business areas.

Conclusion of Contract

Our contractual offers are always non-binding and subject to change. Information on dimensions, weights, analysis or other performance data is only binding if explicitly agreed. Agreements only become binding through an order confirmation issued with a handwritten signature (section 126 of the German Civil Code (BGB)) or in electronic form (section 126a BGB). We also reserve the right to conclude a contract by performing deliveries unconditionally or by invoicing deliveries in whole or in part
We can accept a contractual offer from the customer within two
(2) weeks of its submission. Until the expiry of this period, orders are irrevocable. Any lack of response on our part does not constitute grounds for the conclusion of a contract. If our order confirmation is received late by the customer, the customer will promptly inform us.
If a confirmation letter from the customer deviates from our order confirmation or extends or limits it, the customer will specifically highlight the changes.

3. Prices

Unless otherwise stated in the order confirmation, our prices are “ex works”, excluding packaging, freight, clearance and other ancillary costs, which will be invoiced separately.
Statutory VAT, if applicable, is not included in our prices and will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.
In the event of extraordinary and unforeseen cost increases, a price adjustment up to the amount of our list prices valid on the day of shipment may occur even if a fixed price has been agreed. If the prices of our suppliers or other costs related to our products (e.g. duties, taxes, freight, mineral oil tax duties, energy prices, etc.) increase during the period between the conclusion of the contract and delivery, we are entitled to increase the agreed prices accordingly.
Insurance is only provided at the express request of the customer and at the customer’s expense.

4. Delivery

We are only liable for meeting delivery deadlines and dates if we have given a special written assurance to that effect. We will make every effort to meet bindingly agreed delivery deadlines. In the event of force majeure and other unforeseeable, exceptional and non-culpable circumstances – such as difficulties in procuring raw materials, supply chain disruptions, the effects of armed conflicts on supply chains and procurement markets, natural disasters, pandemics, import difficulties, operational and transport disruptions, strikes, lockouts, shortages of transportation, government interventions, energy supply difficulties, etc. – even if they occur at our suppliers, the delivery deadline will be extended by an appropriate period if we are prevented from fulfilling our obligations on time due to these circumstances.
Our obligation to deliver is conditional upon the timely and proper fulfilment of the customer’s obligations.
If the customer fails to meet agreed or extended delivery deadlines under clause 4(1) sentence 3, it is entitled to set an appropriate grace period. If the grace period expires, the customer is entitled to refuse acceptance of the delayed delivery, excluding claims for damages. If the customer is in default of acceptance or otherwise breaches its cooperation obligations, we are entitled to claim any damages incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the goods passes to the customer at the time when it is in default of acceptance. If the customer requests urgent or express shipments, it will bear the associated costs.

5. Transfer of Risk

Delivery is made at the customer’s risk. The risk passes to the customer upon handover to the carrier, freight forwarder or our own transport personnel, but no later than when leaving the dispatch location.

6. Storage and Transport Equipment

Storage and transport equipment provided by us, which is expressly designated as loan containers, must be returned promptly after the products sold have been removed. The storage and transport equipment provided on loan remains our property. The customer bears the risk of loss or damage until the storage and transport equipment is returned to the dispatch location or another place designated by us, even in cases of force majeure. Our storage and transport equipment may only be used for transportation and storage of the goods supplied by us; otherwise, we are entitled to demand its immediate return. It must be returned immediately after being emptied, with freight and expenses paid, in a clean and undamaged condition to the dispatch location or to the address we specify. If these conditions are not met, we are entitled to have the storage and transport equipment cleaned at the customer’s expense and, in the event of damage, to have it repaired at the customer’s expense.

7. Determination of Quantity

For determining the quantity, the weight or volume established by weighing or measuring at the dispatch warehouse or plant applies. When delivering partial quantities from road tankers, the readings of the calibrated measuring devices apply.

8. Customer Obligations

The customer is responsible for ensuring that the tank system and filling devices are in technically sound condition. The customer must also provide the necessary energy for unloading and bear the costs for pumping and heating.

9. Complaints and Warranties

The customer is obliged to inspect the goods immediately after receiving them. We only owe goods of average quality and grade. Quality characteristics of samples, analysis data or specifications are only considered statements of the goods’ characteristics if agreed upon in writing. We do not provide a guarantee of quality or durability. Commercially permissible and technically unavoidable fluctuations in the goods’ quality and appearance do not constitute grounds for a complaint.
Obvious defects must be reported in writing within five (5) days of delivery; hidden defects must be reported in writing within five (5) days of their discovery. Otherwise, the goods are deemed accepted. In addition, the goods must still be unmixed and distinguishable in the customer’s possession, and the customer must provide two samples of at least 500 g each.
Samples only serve as proof of the actual properties of the goods in question if we have had the opportunity to verify a proper sampling procedure or if the sample was taken by us. The retained sample may only be destroyed with our consent.
In the event of a defect, we must first be given the opportunity to remedy the defect within a reasonable period. We will remedy the defect either by rectification or by supplying a new item, provided the defect was already present at the time of the transfer of risk. In the case of recourse against the supplier, the customer is also obliged, by way of derogation from section 445a(2) BGB, to allow us the opportunity to remedy the defect within the period set by its buyer. A deadline is unnecessary if a deadline was not required between the customer and its buyer under section 445a(2) BGB, meaning the customer cannot allow us the opportunity to remedy the defect. Unless otherwise agreed, the place of subsequent performance is our place of business.
If the subsequent performance fails, the customer is entitled, without prejudice to other rights, to withdraw from the contract or reduce the price under the statutory conditions. Any statutory rights of self-remedy by the customer remain unaffected.
At our request, the customer must declare within a reasonable period whether it intends to withdraw from the contract due to a defect or continue to demand delivery.
We are not liable for defects arising from natural wear and tear or after the transfer of risk due to improper or negligent handling, excessive use or unsuitable operating materials.
By placing an order, the customer accepts that – unless otherwise agreed – application advice is not provided by the seller and has not taken place. The customer alone decides on the application of the ordered/purchased product. The seller only guarantees consistent quality of the goods sold.

10. Standard of liability, scope of liability

We are not liable, regardless of the legal grounds (breach of duties from the contractual relationship, tort, etc.), for damages or reimbursement of expenses.

This exclusion of liability does not apply in the case of

claims for reimbursement of expenses under section 439(3) BGB or section 445a(1) BGB;
intent or gross negligence;
liability under the German Product Liability Act;
liability due to culpable injury to life, limb or health;
the assumption of a guarantee or procurement risk; or
liability due to culpable breach of essential contractual obligations, i.e. obligations whose fulfilment is essential for the proper execution of the contract and on which the customer regularly relies and may rely. In the event of a breach of essential contractual obligations, our liability is limited to foreseeable damage typical for the contract, unless we are liable for intent or gross negligence, injury to life, limb or health, or under the German Product Liability Act. In the case of damage caused by delay, clause 9(4) takes precedence over this clause 10.

The above provisions do not involve any change to the burden of proof.
To the extent that our liability is limited under this clause 10, the same applies to the corresponding personal liability of our employees, agents, officers and legal representatives.
In commercial transactions, we are not liable for our agents unless we are guilty of gross negligence in their selection or supervision. If we negligently breach an essential contractual obligation, our liability for property or personal damage is limited to the coverage amount of our product liability insurance.
We are not liable for damage incurred by the customer due to a technically defective tank system, including the filling devices.

11. Payment Terms

Unless otherwise specified in the order confirmation, payments are to be made immediately net cash upon invoicing.
If the customer is in default of payment, we are entitled to demand default interest at the statutory rate. We reserve the right to claim higher damages caused by default. Furthermore, in the event of payment default by the customer, we are entitled to make outstanding deliveries only against advance payment or security, to withdraw from the contract after a reasonable grace period and/or to claim damages for non-performance. In the event of a significant deterioration in the customer’s financial situation, we are further entitled to demand immediate payment of all claims against the customer, regardless of any contrary payment terms or agreements.
The customer may only offset claims if its counterclaims are legally established, undisputed or acknowledged by us or are in a mutual relationship to our claim. The same applies to the customer’s right to refuse performance.
Payments on our invoices may only be made by our contractual partner and from its own bank accounts. Payments from third parties are not considered fulfilment of our payment claims and will be rejected.

12. Retention of Title

The delivered goods remain our property until the respective purchase price claim is fully satisfied. In commercial transactions, the goods sold remain our property until all claims arising from the business relationship between the customer and us have been paid in full. This also applies if the purchase price for certain goods deliveries specified by the customer has been paid. In the case of current accounts, the reserved property is deemed to be security for the balance claim in our favour.
In the event of a breach of contract by the customer, particularly in the case of default of payment, we are entitled to take back the goods. The repossession of the goods by us constitutes a withdrawal from the contract concerned.
Pledging, transferring by way of security or other dispositions of goods still under retention of title (hereinafter “Reserved Goods”) are not permitted. The customer must notify us immediately of any third-party access to the Reserved Goods, such as seizures, and point out the retention of title to the third party. The customer must promptly send us a copy of the seizure report. If damages, costs or expenses arise for us due to the enforcement of our ownership rights, the customer must reimburse these, unless the enforcing third party can be held liable and the customer is not at fault.
For resellers, resale of the Reserved Goods is permitted in the ordinary course of business, but only revocably. The customer as of now assigns to us all claims arising from the resale or another legal ground relating to the goods over which we have (co-)ownership, as security, up to the invoice value of the delivered goods. We accept this assignment.
At our request, the customer must issue written declarations of assignment. The customer is revocably authorised to collect the assigned claims for us in its own name in the ordinary course of business. This collection authorisation can be revoked if the customer acts contrary to the contract, particularly if the customer fails to meet its payment obligations.
Any mixing, processing or combining of Reserved Goods always takes place for us as the manufacturer but without any obligation on our part. If our (co-)ownership of the Reserved Goods ceases due to mixing, processing or combining, it is hereby agreed that the (co-)ownership of the new item will pass to us proportionally based on the invoice value of the mixed, processed or combined products. The customer will store the (co-)owned items for us free of charge.
At the customer’s request, we will release securities to the extent that they are no longer temporarily needed to secure our claims. If the value of the securities existing for us exceeds the claims to be secured by more than 10%, we will release securities at the customer’s request, at our discretion.

13. Limitation Period

The limitation period for claims and rights due to a defect of the goods or title (damages in lieu of or in addition to performance, reimbursement of expenses, reduction, withdrawal or subsequent performance) is one (1) year.
By way of derogation, the statutory limitation period applies:

to all claims and rights of the customer in the case of section 438(1) no. 1 BGB (third-party rights to surrender of the goods), section 438(1) no. 2, section 634a no. 2 (buildings and building-related goods; planning and monitoring services for a building), section 445b BGB (recourse claims in the supplier’s recourse), or in the case of fraudulent concealment of the defect by us, and in the case of claims for damages, additionally:
in the case of injury to life, limb or health, to claims under the German Product Liability Act and grossly negligent or intentional breaches of duty.

For other claims of the customer, regardless of the legal basis, not based on defects in the goods, the regular limitation period is shortened to two (2) years from the statutory start of the limitation period. This does not apply to claims for damages according to clause 13(1) sentence 2.

14. Force Majeure

If the performance of a contract is impeded by force majeure or circumstances that are not attributable to us and were not foreseeable at the time of concluding the contract, even with reasonable diligence, particularly due to partial or general mobilisation, war, civil war, acts or conditions of war or similar, immediate danger of war, state interventions or controls within the framework of wartime economics, currency and trade policy measures or other sovereign measures, arbitrary official or political acts, riots, terrorism, natural disasters, accidents, labour disputes, significant operational disruptions (e.g. fire, machinery or roll breakage, raw material or energy shortages) of more than a short duration, epidemics, pandemics, disruptions to transport routes or other unusual delays in transport of more than a short duration, the contractual obligations of the parties are suspended and the deadlines and dates intended for performance of the deliveries are extended accordingly, regardless of whether these circumstances occur with us, a supplier or a subcontractor. The customer undertakes to negotiate with us regarding a corresponding adjustment of the contract concerning other contractual conditions (especially the contract price).
Insofar as an adjustment to the contract as a result of force majeure is not economically responsible, both parties have the right to withdraw from the contract.
Statutory rights of withdrawal and termination regulated in these terms and conditions remain unaffected.

15. Data Storage

The customer agrees and consents that all data relating to it from the current business relationship, including personal and invoice-related data, will be stored in our electronic data processing system in accordance with the provisions of the General Data Protection Regulation (GDPR) and may be transmitted to credit agencies and logistics service providers in compliance with the requirements of the GDPR if necessary.
The customer is informed that its consent to the collection and storage of data is purely voluntary. The customer has the right to information (Article 15 GDPR), rectification (Article 16 GDPR), erasure (Article 17 GDPR), restriction of processing (Article 18 GDPR), a right to object to processing (Article 21 GDPR) and a right to data portability (Article 20 GDPR).

16. Applicable Law, Place of Performance and Jurisdiction

German law applies. The provisions of the Vienna UN Convention on Contracts for the International Sale of Goods (CISG) of 11/04/1980 do not apply. For our international business, the Incoterms in their latest version apply, provided they do not conflict with these General Terms and Conditions of Sale and any special agreements. Should any provision be invalid, the remaining provisions shall remain valid.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract is the location of our company’s registered office. However, we are also entitled to bring a legal action in the jurisdiction of the customer’s registered office. The same applies if the customer has no general place of jurisdiction in Germany or if its residence or habitual abode is unknown at the time the action is brought.
Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become wholly or partially invalid, this does not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic result comes as close as possible to that of the invalid provision.

17. Notice pursuant to section 36 of the German Consumer Dispute Settlement Act (VSBG)

We do not participate in dispute resolution proceedings before a consumer arbitration board within the meaning of the VSBG.