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EKOF

Mining & Water Solution GmbH

Herner Str. 299

D-44809 Bochum

 

P+49 (0) 234 / 9032-0

T+49 (0) 234 / 9032-257

EThis email address is being protected from spambots. You need JavaScript enabled to view it.

 

1. Application, Offer and formation of agreement

 

1.1 Application

All offers and orders by our BUYERs (“BUYER”) shall be governed by the following terms and conditions. These General Terms and Conditions (“GTC”) shall govern exclusively all offers and orders placed by us with BUYER. We shall not acknowledge any terms and conditions of BUYER that contradict or differ from these GTC, unless we give express consent thereto in written form. Neither shall an order by us without an explicit rejection constitute an approval of foreign general terms and conditions. If agreed on, the rules of the INCOTERMS of the ICC, Paris, shall govern supplementary.

 

1.2 Order confirmation and conclusion of contract

All our offers are nonbinding and subject to prior confirmation by us before concluding a contract. If not agreed on ion a differing manner, our offers are only binding for 14 days. Orders by BUYER have to be accepted by us within 14 days or not.

The delivery of samples or specimen shall not constitute any guaranty or warranty of us to BUYER.

 

2. Scope of delivery and Reservation of rights

 

2.1 Scope of delivery

Scope of delivery shall only be defined by our written confirmation of order. Time schedule of delivery is nonbinding if not agreed on definitely. The quality of delivery will be as of standard measures and quality. All technical information regarding our delivery, such as, but not limited to measures, quantity, quality, size, given to BUYER shall not constitute any warranty or guarantee. Deviations of delivered goods which are customary in trade or which are caused by governing public law are to be deemed as conforming to the agreed on scope of delivery as agreed on, but only so far if they do not affect the appropriateness of delivered goods as to the agreed on scope of contract. We are allowed to ship the delivery in separated parts if this does not affect the useability of delivery for the BUYER.

The payments are due independently to the main bill of delivery.

 

2.2 Reservation of rights

All offers, calculations, product information (“INFORMATION”) are subject to copyright which is reserved.

BUYER is not allowed to disclose those INFORMATIONS to third parties without our consent in written form. BUYER has to return to us any INFORMATION or destroy it and any copies made out of it, if the INFORMATIONS are not returnable, if INFOMRATION is not needed any more or if no order is placed.

 

3. Prices, Payments, Offset

 

3.1 Prices

All prices are net excluding the applicable V.A.T. The price shall be calculated by the weight of the delivered goods at the time of dispatch. Our prices are calculated regarding the agreed on scope of delivery. Additional services or deliveries will be extra charged. All prices are payable immediately if not agreed on separately.

 

3.2 Payments and delay in payment

If BUYER is in delay of payment, we will charge 5 % interest p.a.

If payment by BUYER is delayed for more than 3 (three) months and if there are substantial doubts in the ability of BUYER to meet its financial obligations, we are allowed – notwithstanding or affecting any other rights – to charge all bills for outstanding deliveries immediately and to charge all other receivables immediately. In case of the BUYER being in a case of insolvency or inability to pay outstanding debt, our goods will not be delivered to BUYER and no further offers or orders will be accepted by us.

 

3.3 Setting-off

The BUYER herewith declares its consent to receivables and liabilities in respect of us being offset. All prerequisites shall be assessed subject to the point of time the receivables were generated and not the due date of said receivables. If a variety of receivables are due on various dates, the value date shall be determinant for calculation. The agreement to offset shall relate to the balance of current accounts. The BUYER thus agrees that any security existing for us or a company, to which the setting-off agreement in the above paragraph relates, shall be liable for each of the receivables of all of these companies.

Set-off by BUYER is permitted only for claims that are undisputed or have been upheld by final decision of a court of competent jurisdiction.

 

4. Force majeure

 

4.1   Suspension due to Force Majeure

If the performance of any obligation under these GTC on the part of either Party should be prevented by an event of force majeure, such as, but not limited to: war, insurrection, earthquakes, fires, floods, epidemics, or government embargoes, the following shall apply:

In the event of force majeure the affected activities of these GTC shall be suspended for a period equal to the delay directly resulting from the occurrence of such event of force majeure, neither Party shall be responsible for any damage or loss which the other Party may sustain, by reason of such a failure or delay of performance.

It is understood between the Parties that such effect of force majeure, must render directly impossible the performance of such obligation.

 

4.2 Invoking Force Majeure

In the event that either Party wishes to invoke force majeure, that Party shall, after the occurrence of the event of force majeure has become known to that Party, send written notice of such event to the other Party together with a corresponding certificate of the respective chamber of commerce and industry or an authority equivalent thereof in the country where force majeure has occurred.

The Party affected shall take appropriate measures to minimize or remove the effects of force majeure and, within the shortest possible time, attempt to resume the performance of the obligations affected by the event of force majeure.

 

5. Delivery and transfer of risk

 

5.1 Delivery

All our deliveries shall be as „FCA“ according to the INCOTERMS 2010, if not ruled on by varying rules in the acceptance of order. Risk of conveyance shall be buried by the BUYER. This shall also govern if orders are shipped partially or other services shall be performed by us and no explicit declaration has been made to the risk of conveyance. Unloading and storage shall be borne by the BUYER.

If bulk material is ordered, BUYER has to provide clean and appropriate containers or tanks. All provisions relating to delivery shall also make clear if deliveries are carried out through third party forwarders.

Any raise in freight costs after signing of order or conclusion of contract and/or extra costs incurred by hindering events not caused by us shall be borne by BUYER. If the value of the ordered goods increases after the order or conclusion of contract, a raise in the transport insurance will only be ordered if expressly asked for by BUYER and if costs are borne through BUYER.

 

5.2 Bearing of risk    

If not agreed on in a diverging way, transfer of risk from us to BUYER shall be via handover of goods to the shipper. This shall also govern if the BUYER rejects the acceptance of our deliveries. In case of delayed distribution or due to the fault of BUYER, the risk of transfer shall be passed to BUYER with the day of provisioning goods for distribution. Costs for warehousing will be borne by BUYER with the day of provisioning goods for distribution.


6. Retention of title, selling-on and assignment, release of excessive security, retention of title in case of international sales, Collection of debt claims trough SELLER

 

6.1 Retention of Title

The delivered goods shall remain our property until all our claims against BUYER

arising from our business relationship with BUYER have been satisfied. If the goods have been processed by BUYER, our retention of title shall extend to the new products. If the goods have been processed, combined or mixed by BUYER with goods of others, we acquire joint title pro rata to that part of the new products representing the invoiced value of our goods in relation to the total value of the other goods which have been processed, combined or mixed.

In the event our goods are combined or mixed with goods of BUYER or of any third party, BUYER hereby assigns to us its rights with regard to the new products.

 

6.2  Selling-on and assignment

If BUYER combines or mixes our goods with goods of a third party for payment, BUYER hereby assigns to us its right to payment from such third party. BUYER may, in the ordinary course of its business, resell any goods which are subject to our retention of title or sell the new products. If, upon such sale/resale, BUYER does not receive the full purchase price in advance or upon delivery of such goods or new products, BUYER shall agree with its BUYER retention of title arrangement on the same terms as set out herein. BUYER hereby assigns to us all its claims arising from such sale/resale and its rights arising from the said retention of title arrangement. Upon our request, BUYER shall inform its BUYER of such assignment of rights and provide us with the information and documents necessary to enforce our rights. Notwithstanding the foregoing, BUYER shall only be entitled to collect payments from claims arising from such sale/resale if BUYER has satisfied its liabilities to us.

 

6.3  Release of excessive security,

In the event that the security interests granted to us exceed the value of our claims, we shall, upon request of BUYER, release such security interests as we deem appropriate. The exercise of our right of retention of title may only be regarded additionally as a rescission with our prior consent made in writing.

 

6.4  Retention of title in case of international sales

Should the retention of title be not legally allowed in case of international sales, the rights concerning the liens on the delivered goods shall rest on the maximum level legally allowed in the foreign legal system.

 

7. Duty of inspection of goods, notice of defect and warranty

 

7.1 Duty of inspection and notice of defect

Deliveries of us have to be inspected immediately after arriving at their agreed on destination by BUYER. BUYER has to inspect them with the due diligence of a well-organized merchant and handle them with due care. If the BUYER does not examine the deliveries in the above mentioned way, the deliveries shall be deemed as proper and fit for purpose and no defects will be accepted by us. Visible defects and/or shortfalls in quantity and/or wrong delivery have to be notified in writing to us in not more than 14 days after receipt of deliveries. If not this deadline or if the deliveries are not handled with the due care by BUYER, all claims regarding defect liability will decease. For any defects occurring after processing of our delivered goods we will not accept any claims for defect.

Hidden defects occurring before processing of delivered goods that cannot be detected through due inspection can only be claimed as a defect to us, if the claim for defect has reached us in writing no later than six month after receipt of delivered goods by BUYER.

 

7.2 Warranty

We assure the BUYER to fulfill the specification as declared in the HAZOP data sheet (“Sicherheitsdatenblatt”) of the delivered goods. Any other warranty, whether implied or not, to the nature of the goods such as those of quality or fitness for purpose is hereby expressly excluded, with the exemption of willful misconduct of the delivered goods by us.

 

8. Liability, REACH

 

8.1  Liability

Any liability to pay damages or compensation, based on contract law, torts, negligence or any other area of law or arising from any duty of indemnification shall in any event be limited to a total aggregate amount not exceeding the purchase price of the delivered goods. In no event shall we be liable for any loss of profit, loss of income or loss of production or any indirect, incidental or consequential loss or damage. Any other liability other than that described above in this section is hereby expressly excluded except as required by applicable law, such as in the case of personal injury or death.

Claims for liability not excludable by applicable law are limited to the foreseeable typical damage.

If damage is caused by third parties, we will assign any claims of us to the third party to the BUYER as far as legally possible. If claims against a third party and against us arise parallel, we shall only be liable if the BUYER has unsuccessfully tried to settle his claims against the third party or if a settlement against the third party would be highly unacceptable for the BUYER.

The aforementioned shall also govern any liability of our management, officers and employees to the BUYER.

 

8.2 REACH

Any liability regarding delay of delivery or frustration of contract shall be excluded, if this is due to noncompliance of BUYER with public regulations according to the European regulation on Chemicals (EC regulation 1907/2006,REACH).

 

9. Confidentiality, Commercials, Trade Marks

 

9.1 Confidentiality, Commercials and Trademarks

Both parties undertake to treat all information, in the form of scientific records and/or samples and written or oral comments thereof, which has been received from the other party without the express prior written consent to the other party and only to use such information for the purpose of this Agreement. For this purpose, employees bound by obligations of secrecy no less strict than those set out herein shall not be regarded as third parties.

The above obligations shall not apply or shall cease to apply to Information which the recipient can show to the reasonable satisfaction of the disclosing party:

-      has become generally available to the public otherwise than through violation of this undertaking;

-      was already in the recipient’s possession prior to its acquisition form the disclosing party;

-      has been received from a third party who acquired it directly or indirectly from the disclosing party.

The right to disclose confidential information to governmental authorities in connection with the registration for the Formulation is not subject to this secrecy obligation.

This obligation of confidentiality shall survive the expiration and/or termination of this Agreement or part of it for a period of ten (10) years

 

9.2 Commercials

Any communication or publication of the business relationship of BUYER to us or any publications containing our name for promotional reasons may only be used with our express written consent.

9.3 Trademarks

Trademarks may only be used with expressly given consent by the owner of the trademark.

 

10. HAZOP Measures

 

If our goods are hazardous substances due to the German „Gefahrstoffverordnung“ (German federal law regarding hazardous substances), BUYER has thoroughly to obey instructions of the HAZOP data sheet (“Sicherheitsdatenblatt”) given by us to BUYER. BUYER must obey the instructions for the goods when storing or processing the hazardous goods; also the HAZOP data sheet must be passed over if the goods are delivered to third parties. We will provide up to date HAZOP data sheets to BUYER. Hazardous products shall only be stored or transported in the containers or tanks nominated by us and with the adequate labelling.

 

11. Choice of law, place of venue, written form, severability

 

11.1 Choice of law and place of venue

These GTC and the entire legal relationship between the parties are subject to the substantive laws of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of goods (CISG) and to the exclusion of national international law of conflict of law and to the exclusion of the directive EC 593/2008; all this provided no contrary agreement is made in writing between the parties.

Exclusive place of venue for all disputes arising out of this agreement shall be Bochum, Germany. SELLER is entitled however to initiate a suit at the court with jurisdiction for the BUYER’s main registered address.

 

11.2     Written Form

Amendments and alterations to these TC shall be made in writing. Oral waivers of this requirement of written form shall have no force.

 

11.3     Severability

If for any reason any provision of these terms and conditions shall be declared void or unenforceable, the remaining provision shall remain valid. The parties shall replace the invalid or unenforceable provisions by a valid and enforceable one, which as far as legally possible implements their commercial intent.