General Terms and Conditions of Sale and Supply
(Version: November 2017)
1.1 These General Terms and Conditions of Sale and Supply shall be binding if they are declared to be applicable in the offer, order confirmation or invoice. Any terms and conditions of the Buyer shall only be valid if they have been expressly approved in writing in advance by ACTEGA SCHMID RHYNER AG.
1.2 All agreements and legally relevant declarations by the contractual parties shall only be valid if confirmed in writing.
2. Offers and conclusion of contracts
2.1 A contract shall be deemed to have been concluded upon confirmation of acceptance by ACTEGA SCHMID RHYNER AG following receipt of an order.
2.2 Offers that do not contain any deadline for acceptance shall be subject to confirmation.
3. Extent of the supply
3.1 The extent and implementation of the supply and service shall be established in the order confirmation. Material or services that are not stated therein shall be charged on an additional basis.
3.2 Changes may be made to the order confirmation by ACTEGA SCHMID RHYNER AG upon condition that they result in an improvement for the Buyer.
4. CLP Regulation (Regulation (EC) no. 1272/2008) ("CLP")
4.1 If ACTEGA SCHMID RHYNER AG supplies products in the European Union, the Buyer shall be deemed to be an EU importer for the purposes of the CLP Regulation. In order to comply with its duty of notification for the classification and labelling inventory (Classification and labelling "C&L") of the European Chemicals Agency (ECHA) under Article 40 CLP, the Buyer hereby appoints Chemservice S.A., 5 an de Laengten, 6776 Grevenmacher, Luxembourg, acting as the Only Representative (OR) of ACTEGA SCHMID RHYNER AG, to submit C&L group notifications to the C&L inventory of the EU on behalf of its company in respect of all relevant substances within the imported products of ACTEGA SCHMID RHYNER AG.
4.2 End user: The Buyer is obliged to provide Chemservice S.A. or ACTEGA SCHMID RHYNER with any relevant new scientific or technical information that could result in a change to the harmonised classification and labelling or exert an influence on the classification of substances not subject to harmonised classification. In the event that the Buyer disposes of new information that could lead to a change to the harmonised classification and labelling, it appoints Chemservice S.A., to submit a corresponding proposal to the competent authorities (Article 37(6) CLP).
4.3 Re-marketing: The Buyer is obliged to provide Chemservice S.A. or ACTEGA SCHMID RHYNER with any relevant new scientific or technical information that could result in a change to the harmonised classification and labelling or exert an influence on the classification of substances not subject to harmonised classification. In the event that the Buyer disposes of new information that could lead to a change to the harmonised classification and labelling, it appoints Chemservice S.A., to submit a corresponding proposal to the competent authorities (Article 37(6) CLP). The Buyer shall remain solely and fully responsible for compliance with all duties relating to notification; these shall include inter alia 1. the updating of labels after changes have been made to the classification and labelling of a substance or mixture; 2. the provision of safety data sheets (SDS) along the supply chain and updating of the SDS as required; and 3. notification of any new relevant information to Chemservice S.A. and/or ACTEGA SCHMID RHYNER AG.
4.4 In the event that ACTEGA SCHMID RHYNER AG disposes of new information that could lead to a change in the harmonised classification and labelling, ACTEGA SCHMID RHYNER AG shall instruct Chemservice S.A. to update the group notification and to transmit the security data sheets with the relevant C&L information to buyers/dealers.
5.1 Unless agreed otherwise, the prices of ACTEGA SCHMID RHYNER AG are stated net, ex works, in Swiss francs and shall include packaging but shall not however cover transportation, insurance and any sales taxes.
5.2 In the event that underlying costs increase between the conclusion of the contract and the time of purchase, ACTEGA SCHMID RHYNER AG shall be entitled to correct accordingly the prices stated in the order confirmation until the final settlement of the order placed with it.
6. Payment terms
6.1 Unless agreed otherwise and confirmed, payment shall be due net 30 days after the invoice date.
6.2 The place of performance for all payment obligations shall be CH-8134 Adliswil (Canton of Zurich). Payments shall be made by the Buyer without any deductions for discounts, expenses, taxes and charges of any kind. Any different payment terms must be specifically agreed upon. Payments will be accepted exclusively by bank transfer.
6.3 In the event of late payment ACTEGA SCHMID RHYNER AG reserves the right to discontinue planned deliveries with immediate effect and shall be entitled to charge default interest of 6% per annum.
7. Retention of Title
7.1 ACTEGA SCHMID RHYNER AG shall retain ownership of the entire supply delivered until it has been paid for in full. The Buyer shall be obliged to take the necessary steps in order to protect the property of ACTEGA SCHMID RHYNER AG.
7.2 ACTEGA SCHMID RHYNER AG shall be entitled to arrange for the reservation of title to be included in the relevant registry, with the involvement of the Buyer.
7.3 The Buyer shall maintain the products delivered at its own cost for the duration of the reservation of title. It shall bear liability towards ACTEGA SCHMID RHYNER AG for theft, breakage, fire or water damage or other risks. It shall in addition take all steps to ensure that the ownership rights of ACTEGA SCHMID RHYNER AG are not impaired or revoked.
7.4 In the event that a provision in the country of the Buyer that is comparable with the reservation of title in Switzerland is not sufficient to establish a legally valid reservation of title, the reservation of title shall be determined in accordance with the specifications stated in the offer or order confirmation of ACTEGA SCHMID RHYNER AG.
7.5 In the event that there is no provision in the country of the Buyer that is comparable with the reservation of title in Switzerland, ACTEGA SCHMID RHYNER AG may require a bank guarantee or comparable security in the amount of the order concerned upon confirmation of the order.
8. Delivery deadline
8.1 The delivery period shall start to run upon acceptance of the order by ACTEGA SCHMID RHYNER AG and after comprehensive settlement of technical issues.
8.2 The delivery period shall be extended by a reasonable duration:
- if the specifications required for the execution of the order are not timeously submitted to ACTEGA SCHMID RHYNER AG or if they are subsequently altered by the Buyer;
- if payment deadlines are not complied with, letters of credit are opened too late or the requisite import licences are not obtained promptly by ACTEGA SCHMID RHYNER AG;
- if obstacles arise that ACTEGA SCHMID RHYNER AG is unable to avoid despite applying the necessary care, irrespective of whether these arise for ACTEGA SCHMID RHYNER AG, the Buyer or a third party. Such obstacles shall include force majeure occurrences, including for example acts of God, epidemics, mobilisation, war, insurrection, significant operational failures, accidents, labour disputes, late or deficient delivery of the raw materials or semi-finished or finished products required, the failure of important parts of the work, executive acts or omissions and natural disasters.
9. Late delivery
9.1 The Buyer shall be entitled to claim compensation for delayed performance in the event of late delivery, provided that the delay is demonstrably attributable to ACTEGA SCHMID RHYNER AG and the Buyer is able to demonstrate a loss resulting from this delay. If the Buyer receives a replacement delivery, the entitlement to compensation for delayed performance shall lapse.
9.2 The compensation for delayed performance shall not exceed 0.1% for each week of delay, up to a maximum of 1%, calculated on the contractual price of the part of the delivery that is delayed. No entitlement to compensation for delayed performance shall arise during the first two weeks of the delay.
9.3 The Buyer shall acquire no rights or claims on account of late delivery or performance other than those expressly specified in Article 9.1 and 9.2.
10. Delivery, transportation and insurance
10.1 The products shall be packaged carefully by ACTEGA SCHMID RHYNER AG. Packaging shall be charged to the Buyer at cost.
10.2 Any special requests relating to dispatch and insurance must be submitted to ACTEGA SCHMID RHYNER AG promptly. Transportation shall occur on the account of and at the risk of the Buyer. Any complaints relating to transport shall be submitted by the Buyer immediately to the last freight forwarder upon receipt of the supply or of the shipping documents.
10.3 If transportation is arranged on the account of ACTEGA SCHMID RHYNER AG under the terms of an agreement between the contractual parties, the increased costs arising after conclusion of the contract shall be borne by the Buyer.
10.4 Insurance against damage of any type shall be a matter for the Buyer. It shall be secured on the account of the Buyer, even if it is concluded by ACTEGA SCHMID RHYNER AG.
11. Examination and acceptance of the delivery
The Buyer must examine the delivery within a reasonable period after receipt and inform ACTEGA SCHMID RHYNER AG promptly in writing of any defects no later than 14 days after receipt of the products. Should it fail to do so, the supplies and services shall be deemed to have been approved.
12.1 ACTEGA SCHMID RHYNER AG warrants that the products supplied by it are compliant with the agreed specifications and with applicable requirements. The warranty period shall extend for 12 months after delivery or respectively notification that the goods are ready for dispatch (technical lifetime of the products), unless a different warranty period is expressly specified in the offer.
12.2 Warranted characteristics shall include only those that are expressly designated as such in the order confirmation or user instructions respectively. The commitment shall apply at the latest until expiry of the warranty period.
12.3 In the event that the products are defective, the Buyer may request the supply of a replacement during the warranty period or request ACTEGA SCHMID RHYNER AG to rectify the defect.
12.4 If a defect falling under Article 12.3 is not rectified within a reasonable period by delivery of a replacement or removal of the defect by ACTEGA SCHMID RHYNER AG, the Buyer may claim a reduction of the purchase price or rescind the contract.
12.5 The warranty shall expire early if the products are improperly used or stored by the Buyer notwithstanding instructions to the contrary by ACTEGA SCHMID RHYNER AG or if following the emergence of a defect the Buyer fails to take all suitable action promptly in order to reduce losses and to provide ACTEGA SCHMID RHYNER AG with the opportunity to rectify the defect.
12.6 Irrespective of any advice provided by ACTEGA SCHMID RHYNER AG in relation to usage, the Buyer shall be individually responsible for examining the products supplied by ACTEGA SCHMID RHYNER AG in order to establish their suitability for the intended processes and purposes. The application, usage and processing of the products does not occur under the control of ACTEGA SCHMID RHYNER AG and thus falls exclusively under the responsibility of the Buyer.
12.7 ACTEGA SCHMID RHYNER AG does not provide any warranty and shall not bear any liability for losses for which ACTEGA SCHMID RHYNER AG was not demonstrably at fault.
12.8 The Buyer shall not have any rights and may not bring any claims in relation to defects and the absence of warranted characteristics other than those expressly referred to in Article 12.3 and 12.4 unless ACTEGA SCHMID RHYNER AG fraudulently failed to disclose the defect.
13.1 All instances of breaches of contract and their legal consequences and all claims of the Buyer, irrespective of their basis in law, shall be conclusively regulated by these Terms and Conditions. In the event that the Buyer is entitled to make any claims out of or in relation to the Contract or its deficient performance, the total amount of such claims shall be limited to the price paid by the Buyer. On the other hand,
in particular any claims to damages, price reduction, termination of the contract or withdrawal from the contract that are not expressly specified shall be excluded. The Buyer shall not under any circumstances be entitled to claim compensation for losses that have not been caused to the item delivered itself, such as in particular loss of output, loss of usage, loss of orders, recall costs, loss of profits or any other direct or indirect losses. In addition, liability to compensate third party claims brought against the Buyer in relation to the infringement of intellectual property rights shall also be excluded.
13.2 This exclusion of further liability of ACTEGA SCHMID RHYNER AG shall not apply in situations involving wilful intent or gross negligence on the part of ACTEGA SCHMID RHYNER AG, although shall apply in respect of auxiliary agents.
13.3 In addition, this exclusion of liability shall not apply insofar as precluded by mandatory statutory provisions.
14. Applicable Law
This Contract shall be governed by Swiss law with the exception of the rules governing the conflict of laws under Swiss private international law, and the United Nations Convention on Contracts of International Sale of Goods ("CISG") shall not apply.
Exclusive jurisdiction shall lie at the registered office of ACTEGA SCHMID RHYNER AG in CH-8134 Adliswil/ZH.
C&L notification obligation according to CLP Regulation
Classification, Labelling and Packaging of substances and mixture; Regulation (EC) No 1272/2008 (‘CLP’)1
The CLP regulation requires that all relevant substances (Article 39 CLP), such as
1. substances (including polymers) classified as hazardous, which have been imported (or manufactured) into the European Union, independent of their annual volume
2. substances which are subject to the registration under REACH (except polymers) and which have been imported or manufactured above 1 metric ton per year
must be notified by the EU importer/EU manufacturer to the classification and labelling inventory (C&L inventory, referred to in Article 42 CLP) of the European Chemical Agency (ECHA) within one month after placing a substance on the market.
According to the CLP regulation, ACTEGA SCHMID RHYNER AG’s EU customers are recognized as EU importers and have thus this notification obligation. However, ACTEGA SCHMID RHYNER AG has appointed its Only Representative Chemservice S.A.2 to create and maintain a so-called group notification3 for all EU customers which allow coverage of importers notification duties to the authorities.
This service is free of charge for all EU customers of ACTEGA SCHMID RHYNER AG. In order to properly implement this service, ACTEGA SCHMID RHYNER AG updated their “General Conditions of Sales and Delivery” with an explicit mandate given to Chemservice S.A. to submit a group notification on customers behalf. Please see the text of the new provision attached to this letter.
If you do not accept these conditions, please inform us in writing within 1 week of receiving this letter the first time. If we do not receive your rejection within this time period, we will consider the mandate as validly given.
All members of a group notification will receive a written confirmation of a successful submission, which is the documentation for the importers and should be provided to inspection authorities on their request. Chemservice S.A. will keep the documentation about classification and labelling of the relevant substances and the group notification and provide it to the authorities if required. No confidential information about group members will be communicated.
In order for us to be able to update the group notification as appropriate, you as our customer remain solely and fully responsible to notify Chemservice S.A. and/or ACTEGA SCHMID RHYNER AG if any new relevant scientific or technical information is available to you which may lead to the change of harmonized classification and labeling or that may affect the classification of substances without a harmonized classification.
Meaning, that you should inform us if
- you notice any other hazards than mentioned on the MSDS of the product.
- you are aware of any other hazards than mentioned on the MSDS of the product.
In case of further distribution you will remain solely and fully responsible to fulfil all obligations associated with the notification, such as having to
- update labels following any change to the classification and labeling of a substance or mixture;
- provide Safety Data Sheets (SDS) along the supply chain and update SDS when necessary.
- notify Chemservice S.A. and/or ACTEGA SCHMID RHYNER AG if any new relevant information are available to you.
Finally, the updated “General Conditions of Sales and Delivery” also contain a mandate for Chemservice S.A. to submit a proposal to the Competent Authority if new information is available to the customer, which may lead to the change of harmonized classification and labeling, as per Article 37(6) CLP.
You will find additional information about the C&L inventory on the website of the European Chemicals Agency (ECHA): http://echa.europa.eu/clp_en.asp
In case you need further information or you have questions, please contact regulatoryPF.ACTEGA.SchmidRhyner@altana.com.
Dr. Alexander Ossenbach
ACTEGA SCHMID RHYNER AG
1 Regulation (EC) No 1272/2008 of the European parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006.
2 Chemservice S.A., 5 an de Laengten, L-6776 Grevenmacher, Luxembourg
3 According to Article 40 (1) of the CLP regulation a so-called group notification can be submitted to the C&L inventory. According to the ECHA Guidance ‘How to notify substances to the Classification and Labeling Inventory’, this group notification can be done by a third party, e.g. an Only Representative of a non-EU manufacturer or formulator.