Terms and Conditions

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General-Terms-and-Conditions_Shodex_January 2023 (pdf)

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General Terms and Conditions of Sale, Delivery and Payment of Shodex Chromatography Products

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1. Application of the Terms and Conditions
(1) These General Terms and Conditions of Sale, Delivery and
Payment of Shodex Chromatography Products sold by Resonac Europe
GmbH (hereinafter “Terms and Conditions”) apply exclusively, even
without separate reference, to all – including future – offers, order
confirmations and contracts for deliveries and services between
Resonac Europe GmbH (hereinafter referred to as “Resonac”) and any
buyer of Resonac´s Shodex Chromatography Products “Shodex
Products” that qualifies as entrepreneur pursuant to § 14 (1) German
Civil Code (BGB) including its affiliated companies, special public-law
funds or any legal person under public law (hereinafter each individually
referred to as the “Buyer”).“Shodex Products” are all goods which are
distributed by Resonac or its commercial agents or affiliated companies
under the brand name “Shodex”.
(2) Resonac does not acknowledge, does not agree with and hereby
explicitly rejects any terms and conditions of the Buyer or any third
party that conflict with or deviate from these Terms and Conditions.
Terms and conditions of the Buyer or third parties shall not apply, even
if Resonac does not explicitly object to their application separately after
receipt, refers to a document, that contains or refers to the terms and
conditions of the Buyer or a third party or performs the contract without
expressing any reservations.
(3) Trade terms shall be interpreted in accordance with the
INCOTERMS 2020. Unless expressly agreed otherwise in writing,
delivery shall be made EXW at the respective plant of Resonac or the
place of delivery of the Resonac sales representative.
 

2. Pre-contractual Services
(1) Initial cost estimates, including drawings and any diagrammatic
views required to elaborate such cost estimates, shall be delivered free
of charge. If other documents are prepared in addition thereto upon
your request (drafts, plans, drawings, calculations of strength and
stability, etc.) which exceed the initial offer, and if Resonac is not
awarded the contract, Resonac shall be entitled to charge reasonable
compensation in accordance with the requested special expenditure of
work.
(2) It is agreed between Resonac and the Buyer that all of the
information, drawings, data, etc. mutually provided within the scope of
our collaboration has been entrusted within the meaning of Sec. 2 Law
on the Protection of Trade Secrets (Geschäftsgeheimnisgesetz) to the
respective other party and may be used exclusively within the scope of
such collaboration. Any other use, including, but not limited to, a
disclosure to third parties, is strictly prohibited. We do not provide any
constructional drawings.

3. Offers, Conclusion and Scope of Contracts
(1) All offers and quotations of Resonac are subject to modification,
are non-binding unless they are expressly marked as binding in text form
or contain a specific acceptance period and are to be understood as an
invitation to the Buyer to submit an offer or purchase order for the
conclusion of a contract with Resonac.
(2) The scope of Resonac’s contractual and delivery obligations shall
be determined exclusively by the content of the contract concluded by
the Buyer’s purchase order and Resonac’s respective order
confirmation, which both require text form (“Contract”). Instruction of
the responsible employees of the Buyer with regard to the use of the
equipment and the Shodex Products, regular maintenance and servicing
as well as regular inspection of the functionality of the equipment and
testing of the functionality of the Shodex Products and the conformity
of the Technical Specifications before their use are exclusively the
responsibility of the Buyer.
(3) We reserve the right to make change to our products in respect of
design, shape and/or color due to technical improvements or due to
legal requirements as far as these changes are not material or are
reasonable for the Buyer. Relevant “identified uses” for the Shodex
Products according to the Regulation concerning the Registration,
Evaluation, Authorization and Restriction of Chemicals (“REACH
Regulation”) shall neither constitute an agreement on a corresponding
contractual quality of the Shodex Products nor a presumed or intended
use according to the contract. Likewise, technical specifications and
other details contained in quotations and offers, brochures, websites
and other sources of information have no binding effect. Technical
Specifications are based on technical findings from experimental test
and various applications in practice, and thus are in no event to be
considered warranted characteristics for the specific case of application.
(4) Any written or verbal orders submitted by the Buyer and any other
verbal agreements as well as verbal side agreements, commitments
and/or warranties become effective and binding only by confirmation
by Resonac in text form (incl. e-mail, fax). For Resonac, the power of
representation of Resonac’s representatives and employees is expressly
limited in this respect.
(5) Conditions of patterns and samples are only binding if they have
been explicitly agreed as conditions of the Shodex Products.
(6) Statements as to the quality of our products do not constitute a
guarantee unless Resonac has explicitly designated them as a
guarantee. Identified usages for Shodex Products in accordance with
REACH-Directive do neither constitute an agreement regarding a
respective condition of the Shodex Products nor an agreement
regarding a specific usage of the Shodex Products.
(7) Contractual partner of the Buyer is exclusively the Resonac entity,
which is named in the order confirmation. The individual Resonac
entities are not liable as joint debtors (Gesamtschuldner).

4. Prices and Terms of Payment
(1) Unless otherwise agreed, purchase prices are payable
immediately on receipt of the Shodex Products, however, no later than
14 days from the date the invoice has been received, by bank transfer.
Payments in cash are not accepted. Payments are deemed to have been
duly completed with effect from the date on which the amount is at
Resonac’s free disposal. The deduction of cash discount requires a
special written agreement. The Buyer must pay any taxes or customs
duties, etc. levied on the transaction in the country of receipt.
(2) Default in payment of the agreed purchase price when due
constitutes a material breach of the contractual obligations. In the event
of reasonable doubt concerning the solvency of the buyer, in particular
in the event of default in payment, Resonac may, without prejudice to
further claims, withdraw previously agreed payment terms and make
further deliveries conditional upon the provision of other securities or
advance payments.
(3) Other forms of payment require a separate written agreement.
The Buyer pays the costs incurred by both parties for such forms of
payment.
(4) If there is a change in the costs incurred by Resonac for delivery
between Resonac’s quotation or confirming the order until delivery, e.g.
as a result of the subsequent introduction of - or an increase in - duties,
taxes or other charges imposed on Shodex Products, including but not
limited to EU duties and anti-dumping duties or countervailing duties or
similar or in the event of a change in currency parities, Resonac is
entitled to adapt the price offered or agreed accordingly.
(5) Resonac’s price quotations are net prices and do not include
value-added tax. Unless agreed otherwise, Resonac’s prices are
calculated excluding freight and insurance costs. If value-added tax
must be charged it will be shown separately on the invoice at the
statutory rate in application on the date of issue of the invoice.

(6) The Buyer may exercise a right of withholding or set-off only with
regard to receivables or claims of the Buyer that are undisputed or have
final and legally binding effect.
(7) If Buyer is in default, Resonac is entitled to default interest in the
amount of 9% above the base interest rate which was applicable at the
date the default has occurred.
(8) Resonac is entitled to assign due receivables to third parties. At
Resonac's request the Buyer is obliged to consent to the assignment of
receivables, if no legitimate interests to refuse his consent exist or if the
legitimate interests of Resonac in the assignment of the claim prevail.

5. Delivery
(1) Resonac’s delivery dates or delivery periods are non-binding,
unless a specific delivery date or delivery period has been expressly
agreed or designated as binding. If Resonac’s order confirmation
indicates “No confirmed delivery date determined yet” then the Shodex
Products must first be manufactured or shipped to Resonac. In this case
the non-binding delivery period will be 2 months from the date of
Resonac’s order confirmation.
(2) Six weeks after expiry of a non-binding delivery date or delivery
period, the Buyer may set Resonac a reasonable subsequent date for
delivery in writing.
(3) If the Buyer can reasonably be expected to accept partial
deliveries, these may be made and invoiced.
(4) If a delivery period has been agreed, this period starts with the
date of the written order confirmation. In case not all details of the
delivery are agreed at this date, the start of the delivery period is
delayed until all details are agreed. The specification of a delivery period
is subject to the contractually agreed cooperation of the Buyer. The
adherence to our duty of deliverance is subject to the timely and orderly
fulfillment of the obligations of the Buyer. In case the Buyer
subsequently requests changes or does not provide required
documents (e.g. permissions or approvals that need to be provided by
the Buyer), the delivery period is adequately extended. The delivery
period is met if the Shodex Products are ready for shipment within the
agreed delivery period and if we have communicated this to the Buyer.
(5) If it becomes apparent after conclusion of the Contract that the
Buyer is unable to provide an adequate guarantee of its solvency and
our claim to payment is in danger, Resonac is entitled to refuse delivery
until the Buyer has effected payment or furnished security for the same.
If no payment is made or security furnished within 12 working days of a
request to this effect, Resonac is entitled to rescind the Contract.
(6) If the Buyer is in default with a release order, acceptance or
collection or the Buyer is responsible for a delay in shipment or delivery,
Resonac is entitled, without prejudice to other claims, to require a flat
rate amount equal to local storage costs, regardless of whether the
Shodex Products are being stored with Resonac or a third party. The
Buyer has the right to prove that either no damages or lower damages
were suffered.
(7) If Resonac fails to receive delivery items, raw materials, required
substances, energy or gas from Resonac’s own suppliers, although
Resonac placed respective orders with reliable suppliers under
surveyance of the standard of care of a prudent business person,
Resonac is released from our obligation to deliver and can rescind the
Contract if Resonac is not responsible for the non-deliverance. Resonac
will inform the Buyer about the non-disposability of the deliveries
without undue delay and if Resonac decides to withdraw from the
Contract Resonac will do so immediately. If Resonac informs the Buyer
about the non-disposability of the deliveries the Buyer also has the right
to withdraw from the Contract. In case the Contract is rescinded
Resonac will reimburse the purchase price as far as it has already been
paid.
(8) In the event of the Buyer cancelling the Contract without cause,
Resonac is entitled to require 20% of the gross order value as liquidated
damages (damages in lieu of performance). The same applies if the
Contract is not performed for reasons for which the Buyer is
responsible. The Buyer has the right to prove that either no damages or
lower damages were suffered.
(9) If the Buyer suffers damages as a result of default in delivery, the
Buyer is entitled to claim 3% of the value of the delivery for each full
week of default as liquidated default damages, however, a maximum of
10% of the value of the delivery. The Buyer can also set Resonac a
reasonable subsequent date for delivery in writing after the six-weeksperiod
in clause 5.2 has been elapsed. If this subsequent deadline passes
without issue, the Buyer is entitled to rescind the Contract or claim
damages in lieu of performance.
(10) Clause 5 section (9) above does not apply if default is due to
intent, gross negligence or breach of an essential duty. It also does not
apply if a transaction for delivery by a fixed date was agreed.

6. Force Majeure
(1) If Resonac is unable to adhere to its contractual obligations as a
result of unforeseeable circumstances beyond Resonac’s control
(“Force Majeure Event”) affecting Resonac or our suppliers, Resonac is
relieved from our contractual obligations for the period of existence and
to the extent of the consequences of the Force Majeure Event. In this
case the agreed delivery period is extended accordingly.
(2) In particular but without limitation the following events are
considered as Force Majeure Events:
a) war (whether declared or not), hostilities, invasion, act of foreign
enemies, extensive military mobilization; b) civil war, riot, rebellion and
revolution, military or usurped power, insurrection, act of terrorism,
sabotage or piracy; c) currency and trade restriction, embargo, sanction;
d) act of authority whether lawful or unlawful, compliance with any law
or governmental order, expropriation, seizure of works, requisition,
nationalization; e) plague, epidemic, natural disaster or extreme natural
event; f) explosion, fire, destruction of equipment, prolonged breakdown
of transport, telecommunication, information system or energy
supplies; g) general labor disturbance such as boycott, strike and lockout,
go-slow, occupation of factories and premises general
unavailability of raw material, fuel or gas supplies, unavailability of
carriers, the use of railways, shipping, aircraft, motor transport, or any
other means of public or private transport.
(3) Resonac shall notify the Buyer without delay in such a case. If the
impeding circumstances last longer than two months after expiry of the
agreed delivery period, either party may rescind the Contract. Further
claims based on Resonac’s failure to deliver within the delivery period
for reasons for which Resonac is not responsible are excluded.

7. Statutory Warranty (Gewährleistung), Defects (Sachmängel)
(1) The Buyer shall adhere to the statutory duties of examination for
defects in respect to the delivered Shodex Products and submission of
any notices required under applicable law.
(2) The Buyer cannot derive any further rights from material defects
that do not affect the value or suitability of the Shodex Products for the
purpose reasonably recognizable to Resonac or do so merely to a
negligible extent.
(3) If the Shodex Products show defects at the time of passing the risk
(Gefahrenübergang), Resonac is entitled and obliged to subsequent
performance (Nacherfüllung). At Resonac’s sole discretion, subsequent
performance can take place by subsequent improvement
(Nachbesserung) or replacement delivery (Ersatzlieferung) provided
that this is reasonable for the Buyer. The costs of subsequent
performance, in particular, transport costs, travelling expenses, labor
costs and material costs are at Resonac’s expense. Resonac is entitled
to refuse the subsequent performance until Buyer has paid the
purchase price. However, Buyer is entitled to retain a part of the
purchase price which is appropriate in relation to the respective defect.
(4) If subsequent performance is unsuccessful, is unreasonable for
the Buyer, does not take place within a reasonable period of time set by
the Buyer or is refused, the Buyer may, at its own discretion, rescind the
Contract, require a reduction in the selling price that corresponds to the
reduction in value resulting from the defects or – within the limits of the
following section 6 (Liability) – claim damages in lieu of performance.

(5) Resonac is not liable for any defects that are caused by usage of
our products which is not in line with our instruction manual or our
maintenance manual. Also we are not liable for defects caused by using
spare parts or materials which are not in line with the original
specifications as well as by maintenances performed by unqualified
personel.
(6) Clauses No. 7 (2) to (4) have no effect on the rights granted in
§ 445a German Civil Code (BGB).
(7) If a defect is caused by intent or negligence (Verschulden) of
Resonac, the Buyer may claim damages under the conditions specified
in Clause 8.

8. Liability
(1) Unless otherwise stated in these Terms and Conditions including
the provisions below, Resonac’s contractual and non-contractual
liability is based on the relevant statutory provisions.
(2) For damages caused by intent (Vorsatz) or gross negligence (grobe
Fahrlässigkeit) Resonac shall be liable irrespective of the legal basis. In
case of simple negligence (einfache Fahrlässigkeit), Resonac is only
liable
a) for damages resulting from death or personal injury;
b) for damages resulting from the breach of an essential contractual
duty, which is an obligation of the fulfilment of which is a prerequisite
for the proper execution of the contract and on the fulfilment of which
the contracting party regularly relies and is entitled to rely on (“Cardinal
Duty”); in this case, Resonac’s liability is limited to foreseeable damages
that are typically associated with the contract at the time of its
conclusion. Resonac is not liable for a breach of non-essential
contractual duties through simple negligence.
(3) Indirect and consequential damages resulting from defects of
Shodex Products are only recoverable as far as such damages are
typically to be expected at the time of conclusion of the contract with
the Buyer. Resonac has typically no information of the extent of loss
mitigation measures and the extent of the Buyer's production planning
and capacity or any actual or expected turnover or profits, order
volume, or the nature, number and extent of the Buyer's customer
relationships and purpose of the Buyer’s products. Therefore, loss of
income, loss of actual or anticipated profits or loss of production is not
comprised by the foreseeable, typically to be expected damage if
information in this respect has not become the basis of the contract due
to lack of due notice to Resonac before conclusion of the contract. This
provision shall not apply in the event of intentional or grossly negligent
conduct by members of the Resonac's corporate bodies or executive
employees.
(4) The limitations of liability as to Clause No. 8 (2) and (3) do not
apply if Resonac should fraudulently have concealed a defect or given a
guarantee as to the workmanship of the product. The same applies to
claims of the Buyer in accordance with the German product liability act
(Produkthaftungsgesetz), if applicable.
(5) Resonac shall not be liable in case of impossibility or delay in the
performance of delivery obligations, if such impossibility or delay is
caused by Buyer's proper compliance with public law obligations in
connection with the European Chemicals Regulation (REACH
Regulation).
(6) If Resonac’s liability is excluded or limited, the personal liability of
Resonac’s executive bodies, employees, representatives and agents is
limited or excluded to the same extent.
(7) To the extent that Resonac provides technical information or acts
in an advisory capacity and this information or advice is not part of the
contractually agreed scope of performance owed by the Seller, this shall
be provided free of charge and with the exclusion of any liability.

9. Limitation Period
(1) Subject to § 438 No. 2, § 634a (1) No. 2, § 455b German Civil Code
(BGB), the Buyer’s right to subsequent performance becomes timebarred
one year after delivery of the Shodex Products; no warranty
claims are available for used items. Accordingly, the right of rescission
and to a price reduction under the statutory regulations is excluded.
(2) The limitation period for claims to damages is one year subject to
§ 438 No. 2, § 634a (1) No. 2, § 455b German Civil Code (BGB).
(3) The statutory limitation period applies to claims under the
German Product Liability Act (Produkthaftungsgesetz), to cases of intent
and gross negligence and for damages resulting from death or personal
injury.

10. Retention of Title
(1) Title to the Shodex Products is reserved until settlement of all of
Resonac’s receivables due from the Buyer from the business relations,
including future receivables from contracts concluded at the same time
or at a later date and will be credited on our account. The same applies
if receivables are entered in a current account and the balance has been
drawn and acknowledged.
(2) The Buyer is entitled to sell or process the Shodex Products in the
normal course of business. The Buyer undertakes any processing on
Resonac’s behalf without this giving rise to any obligations on Resonac’s
part.
(3) However, the Buyer already now assigns all receivables accruing
to the Buyer against a purchaser or third party out of the resale. The
Buyer remains entitled to collect the receivable even after the
assignment. This does not affect Resonac’s authority to collect the
receivables, however, Resonac shall not exercise this right as long as the
Buyer continues to meet its payment and other obligations. If required,
the Buyer must notify Resonac of the receivables assigned and their
debtors, provide all details required for their collection, hand over the
relevant documents and notify the debtors of the assignment.
(4) In the event of conduct in breach of contract by the Buyer
including, but not limited to, default in payment, Resonac is entitled to
rescind the contract and recover the product delivered. For the purpose
of recovering the Shodex Products, the Buyer hereby irrevocably grants
Resonac the right to enter its business premises and warehouse
premises unhindered and to take away the Shodex Products.
(5) As long as title is retained, the Buyer may not assign Shodex
Products or items made from the Shodex Products or pledge them
without Resonac’s consent. Resonac’s prior written consent is required
for the conclusion of financing contracts (for example, leasing
agreements) that involve the transfer of Resonac’s rights of retention
unless the contract obliges the bank to pay Resonac its share of the
selling price directly.
(6) In the event of attachments or other intervention by third parties,
the Buyer must notify Resonac without delay in writing. The Buyer is
prohibited from making any agreements with its purchasers that could
impair Resonac’s rights.
(7) the Buyer is obliged to insure the retained-title Shodex Products
against theft, mechanical damage, fire and water damage.
(8) Resonac undertakes to release securities accruing to itself to the
extent to which such securities exceed the realizable value of the
receivables to be secured by more than 10% or the nominal value of the
securities by more than 50%.

11. Export Control
(1) The Buyer ensures to be compliant with any applicable export
regulations. In particular the Buyer undertakes to accept and comply
with European, German and Japanese export control provisions as well
as the US (re-) export requirements to the extent that the transfer to
other Member States of the European Union / exportation to third
countries of the items is subject to US law. In addition, the Buyer must
inform himself of the relevant provisions and bears the responsibility for
complying with them. Aforementioned obligations are valid insofar as
they do not infringe applicable conflicting provisions of the Regulation
of the Council of the European Union (EU) No. 2271/96 as amended
(“EU Blocking Regulation”) and/or provisions of Section 7 of the

German Foreign Trade and Payments Ordinance as amended
(Außenwirtschaftsverordnung – “AWV”). Therefore, subject to any
applicable conflicting provisions of the EU Blocking Regulation and/or
Section 7 AWV, neither Buyer nor Resonac shall be obligated to make
any payments, repayments or any other performance that may expose
the Buyer or Resonac to the risk of being the target of any sanction,
prohibition or other restriction under any applicable United Nations
resolution or under any law or regulation of Germany, the European
Union, the United Kingdom or the United States of America relating to
trade and economic sanctions.
(2) The Buyer covenants to neither directly, nor indirectly sell, export,
reexport, deliver, pass on or make accessible otherwise the Shodex
Products to persons, organizations, institutions or to countries in case
this violates European, German, Japanese or applicable US export
control laws or embargo provisions.
(3) Upon request the Buyer is obligated to provide Resonac with
adequate and complete information regarding the end use of the
delivered Shodex Products, especially to issue and provide Resonac with
an original of an end user certificate (EUC) in order to enable us to check
the end use and the purpose of use of the delivered Shodex Products
and to serve as prove towards the export control authorities.

12. Confidentiality and Data Protection
(1) Buyer agrees not to forward information that either was classified
as confidential or due to its contents obviously is confidential to third
parties. Buyer will take reasonable measures to prevent access to these
confidential data by unauthorized persons.
(2) In cases where Resonac provides personal data of its employees
to Buyer or where Buyer receives this personal data in any other way,
Buyer is only allowed to process this data for the completion of the
contract with Resonac. Buyer will not process this personal data in any
other way except in cases where data processing is allowed by law.
Buyer ensures that personal data is only made accessible, to the extent
required, to those employees who are dealing with the completion of
the contract (Need-to-Know-Principle).

13. General provisions
(1) Place of performance is Resonac’s respective registered office of
the selling entity within the Resonac Group.
(2) Any dispute, controversy or claim arising out of, relating to, or in
connection with any agreement, Contract or transaction or concerning
the breach, termination or validity thereof shall be finally and
exclusively resolved by binding arbitration in accordance with the Rules
of Arbitration of the International Chamber of Commerce entered into
force on January 1st, 2021, without recourse to the ordinary courts of
law. The seat of arbitration shall be Frankfurt am Main. The arbitral
tribunal shall be composed of three (3) arbitrators if the amount in
dispute is equal to or exceeds one hundred thousand Euros and of only
one (1) sole arbitrator if the amount in dispute is less than one hundred
thousand Euros, who shall be selected by application of the Rules of
Arbitration by the aforementioned rules. The arbitration proceedings
shall be conducted in English. The law applicable to this arbitration
clause shall be the laws of the Federal Republic of Germany.
(3) The business relationship between Resonac and the Buyer, in
particular all Contracts, shall generally be governed by all substantive
laws of the Federal Republic of Germany, except for cross-border
transactions or deliveries, for which the application of Sections 305 up
to and including 310 of the German Civil Code (BGB) shall be excluded.
The Convention of the United Nations Convention on Contracts for the
International Sale of Goods of April 11, 1980 (CISG) shall not apply.
(4) All amendments, modifications or additions to any contract must
be in text form (incl. e-mail, fax) in order to be effective. The termination
of the contract by the Buyer or by Resonac requires the written form in
accordance with § 126 German Civil Code (BGB).
(5) To the extent that the contract or these Terms and Conditions
contain gaps in their provisions, legally effective provisions apply which
the contracting parties would have agreed in accordance with the
commercial purposes of the contract and the purpose of these General
Terms and Conditions if they had been aware of the gap in the
provisions.
(6) These Terms and Conditions replace all previous versions for the
conclusion of all future contracts.

Issue Date: December 2022

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