A. General Provisions
1. Scope, Legal Basis of the Contract
1.1 These General Terms and Conditions (GTC) apply to all purchase agreements, contracts for the delivery of work and materials, and contracts for services entered into by A. Ebbecke Verfahrenstechnik AG (hereinafter: “Supplier”) with business entities as defined in § 14 of the German Civil Code (BGB), legal entities under public law, or special funds under public law (hereinafter: “Purchaser”).
1.2 All deliveries and services provided by the Supplier are made exclusively on the basis of these General Terms and Conditions. Any conflicting or deviating General Terms and Conditions of the Purchaser shall not become part of the contract unless their validity is expressly agreed to in writing. These General Terms and Conditions shall apply even if the Supplier carries out the delivery or service without reservation while being aware of conflicting or deviating terms and conditions of the Purchaser.
1.3 These General Terms and Conditions are an integral part of every offer and every order confirmation issued by the Supplier and shall also apply to future transactions of the same nature with the same purchaser, without the Supplier being required to refer to them again in each individual case.
1.4 The Supplier reserves ownership rights and copyrights to samples, cost estimates, drawings, and similar information, whether tangible or intangible—including in electronic form; such information may not be made available to third parties. The Supplier agrees to disclose information and documents designated as confidential by the Purchaser to third parties only with the Purchaser’s consent.
1.5 Any acceptance of an order, as well as contract amendments, representations, and supplementary agreements (including those waiving the requirement for written form), require our written confirmation. The content of this confirmation is exclusively binding. Any deviating or supplementary agreements must be in writing. Verbal agreements are valid; the party invoking such an agreement bears the burden of proof; amendments must be made in writing at a minimum.
2. Internal Storage and Costs
If, due to the purchaser’s contributory negligence, the goods have not actually been shipped within 7 calendar days of the purchaser’s receipt of the written notice of completion, the supplier is both entitled and obligated to transport the goods to an external warehouse at the purchaser’s expense and to store them there. The purchaser must reimburse the supplier separately for these additional costs incurred as a result, based on the expenses generated by the specifications of the goods. The supplier is entitled to determine and claim the respective expenses in accordance with § 315 of the German Civil Code (BGB). The purchaser is entitled to have the amount of these expenses reviewed by a German court.
3. Transfer of Risk
3.1 Transfer of Risk, INCOTERMS®
3.2.1 Unless otherwise agreed, delivery shall be “EXW” (INCOTERMS® 2020) ex works from Bruchköbel, Schöneck, or Hirzenhain. The risk of accidental loss and accidental deterioration passes to the purchaser upon handover of the goods to the first carrier.
3.2.2 If the Supplier arranges for transportation, it acts on behalf of and for the account of the Purchaser; the transfer of risk pursuant to Section 3.2.1 remains unaffected by this.
4. Transportation, Packaging, Limits of Liability
4.1 In the event of damage during transport—provided the Supplier is not the carrier itself—the liability of the contracted carrier shall apply. The Supplier shall be liable to the Purchaser for the careful selection and instruction of the carrier.
4.2 Any limitation of the carrier’s liability to 8.33 Special Drawing Rights (SDR)/kg applies exclusively to liability under freight law. The limitations on liability do not apply in cases of willful misconduct or gross negligence on the part of the supplier, in particular not in cases where the supplier is at fault for packaging or loading.
4.3 The Purchaser shall maintain—to the extent customary in the industry—transportation insurance covering at least the invoice value. Upon request, the Supplier shall take out transportation insurance at the Purchaser’s expense.
5. Retention of Title
5.1 Unless the raw materials were provided entirely by the Buyer [goods subject to retention of title], the delivered goods shall remain the property of the Supplier until all current claims of the Supplier arising from the ongoing business relationship with the Buyer have been paid in full.
5.2 The purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business. As security, the purchaser hereby assigns to the supplier all claims arising from such resale in the amount of the invoice value (including sales tax). The supplier accepts the assignment.
5.3 The Supplier revocably authorizes the Purchaser to collect the assigned receivables. The authorization to collect shall expire without the need for revocation in the event of a delay in payment, a petition to commence insolvency proceedings, or any other loss of the Purchaser’s creditworthiness. In such a case, the Purchaser is obligated to provide the Supplier with the information necessary for collection and to hand over the required documents.
5.4 The goods subject to retention of title may not be pledged or transferred by way of security. The purchaser must immediately notify the supplier of any seizures or other interventions by third parties.
6. Defects, Obligation to Notify of Defects, Rectification
6.1 Section 377 of the German Commercial Code (HGB) remains unaffected with respect to sales contracts and contracts for work and materials between merchants. The purchaser must notify the supplier in writing and in specific terms of any apparent defects immediately, no later than 3 business days after delivery, and of any latent defects immediately upon discovery.
6.2 In the event of justified complaints regarding defects, the supplier shall, at its discretion, remedy the defect by repair or replacement. If the subsequent performance fails, is unreasonable, or is unjustifiably refused by the Supplier, the Purchaser is entitled to the statutory rights to a price reduction or rescission. If the Purchaser is entitled to claims for damages or reimbursement of expenses against the Supplier, such claims shall be limited in accordance with Part A, Sections 11.1–11.7.
6.3 In all other respects, liability for defects is governed by the provisions in Section 11 (Liability) and Section 12 (Statute of Limitations).
7. Compliance, Placing on the Market
7.1 Unless otherwise expressly agreed, the purchaser is responsible for complying with the product, labeling, and other compliance requirements applicable to the respective market, unless the supplier itself, as the manufacturer, places the product on the market.
7.2 If the Purchaser provides specifications or other instructions (e.g., formulations, labeling requirements, packaging regulations), the purchaser shall indemnify the supplier against any third-party claims based on these instructions, unless the supplier has implemented the instructions in a clearly erroneous manner.
8. Prices, Price Changes
8.1 Unless otherwise agreed, the Supplier’s prices are “ex works,” plus the applicable statutory value-added tax, costs for packaging, transportation, insurance, customs duties, fees, and other charges.
8.2 Fixed prices apply only if they are expressly agreed upon as such. In all other cases, the supplier is entitled to adjust prices if, after the conclusion of the contract, the cost components relevant to the performance of the service (in particular energy, materials, transportation, and wages) change in an unforeseeable and significant manner.
8.3 A price adjustment pursuant to Section 8.2 is permissible only if the relevant cost components have changed by more than 5% in total compared to the basis for calculation at the time the contract was concluded. The adjustment shall be made to the extent that the cost components have actually changed; both increases and decreases must be taken into account. Upon request by the Purchaser, the Supplier shall disclose the basis for calculation to a reasonable extent.
8.4 Notwithstanding the foregoing, index-linked adjustments apply to framework agreements and serial deliveries: If the relevant indices (e.g., the Producer Price Index for Industrial Products—Destatis—and/or industry-standard material/energy indices) change by more than 5% compared to the base value at the time the contract was concluded, prices shall be adjusted accordingly. The change in the relevant index at the time the service is rendered shall be decisive.
8.5 If a price adjustment permitted under the preceding paragraphs exceeds a total of 10% of the net contract value, the purchaser is entitled to withdraw from the contract with respect to services not yet rendered within 14 days of receiving notice of the price adjustment. Services already rendered shall be invoiced at the original prices.
8.6 This price adjustment clause does not apply to services expressly confirmed as individual fixed-price orders, unless otherwise expressly stipulated when the order was placed.
9. Cancellation, Capacity Commitment
9.1 If the customer cancels an order for which a specific processing period was agreed upon in writing and capacity was bindingly reserved for that purpose, the supplier may charge the following flat-rate cancellation fees, which reflect the damages typically incurred by the supplier as a result of the cancellation, as follows:
- Cancellation up to 4 weeks before the start of the processing period: 20% of the net order total,
- Cancellation up to 2 weeks before the start date: 40%,
- Cancellation up to 1 week before the start date: 60%,
- Rejections during the review week: 75%.
9.2 The lump-sum amounts specified in Section 8.1 take into account savings in expenses as well as the usual replacement or substitute occupancy. The customer reserves the right to prove that the damage incurred was minor or nonexistent. The supplier reserves the right to prove that the damage was greater.
9.3 Third-party costs that have already been incurred and can no longer be canceled (e.g., transportation services for which a binding order has been placed, special materials, government fees) must be reimbursed separately upon presentation of proof, unless they are already covered by the lump-sum payment. There will be no double reimbursement.
10. Delivery Times, Delays
10.1 Delivery periods and dates are binding only if they have been expressly confirmed as binding by the supplier. Delivery periods shall not commence until all technical issues have been clarified and the purchaser has fulfilled any obligations to cooperate in a timely and complete manner (e.g., provision of materials, approvals, payments, and provision of information and documentation).
10.2 Events of force majeure and other circumstances beyond the Supplier’s control (in particular natural disasters, epidemics/pandemics, government measures, significant supply chain disruptions, energy shortages, strikes/lockouts, and failure to receive correct or timely deliveries from suppliers despite a corresponding hedging transaction) shall extend delivery deadlines by the duration of the disruption plus a reasonable restart period. The Supplier shall immediately inform the Purchaser of the unavailability and the expected duration of the delay.
10.3 If the Supplier is in default, the Purchaser may demand a lump-sum compensation for delay in the amount of 0.5% of the net value of that portion of the performance which, as a result of the delay, cannot be used on time for each full week of delay, up to a maximum of 5% in total. The purchaser reserves the right to prove that higher, specific damages were incurred; the supplier reserves the right to prove that the damages were lower.
10.4 Any further statutory rights of the Customer (e.g., the right to rescind the contract after setting a reasonable grace period) remain unaffected. Claims for damages are governed by the liability provisions in Section 11.
11. Liability
11.1 The Supplier shall be liable for damages and reimbursement of expenses, regardless of the legal basis, only in accordance with this Section 11.
11.2 The purchaser’s claims remain unaffected:
- if done intentionally,
- in the event of gross negligence on the part of the Supplier’s governing bodies or executive officers,
- in the event of a negligent act resulting in death, bodily injury, or harm to health,
- if a warranty is assumed or if a defect is fraudulently concealed,
- under the Product Liability Act.
11.3 In the event of a culpable breach of material contractual obligations (cardinal obligations), the Supplier shall be liable even in cases of simple negligence; in such cases, however, liability shall be limited to damages typical for this type of contract and foreseeable at the time the contract was concluded. Essential contractual obligations are those whose fulfillment is essential for the proper performance of the contract and on whose compliance the purchaser may regularly rely.
11.4 In all other respects, the Supplier’s liability for ordinary negligence is excluded.
11.5 To the extent that liability arises under these General Terms and Conditions, in particular under the foregoing provisions, the amount of liability—subject to personal injury and the cases specified in Section 11.2—shall be limited, in the event of a breach of material contractual obligations, to the foreseeable damages typical for this type of contract, and in all other cases to:
the net order value, as stated in the supplier’s order confirmation, for the delivery or goods affected by the loss event. The purchaser is hereby expressly advised that it must obtain its own insurance coverage for this risk even if there is only an abstract possibility of significant consequential damages.
11.6 Any exclusion or limitation of liability shall also apply to the personal liability of the Supplier’s employees, representatives, and agents.
11.7 Contractual claims for compensation for consequential damages resulting from defects and other consequential damages are compensable under the foregoing provisions only to the extent that such damages would typically be expected under normal circumstances. These claims are also capped at the total net order value of the respective order. Atypical or remote consequential damages are excluded in cases of simple negligence.
12. Statute of Limitations
12.1 Claims arising from defects in quality or title are subject to a 12-month statute of limitations, beginning on the date of transfer of risk or acceptance. The following are exceptions to this rule:
- Claims arising from willful misconduct or gross negligence,
- Claims arising from injury to life, body, or health,
- Claims arising from a warranty or in cases of fraudulent concealment of a defect,
- Claims under the Product Liability Act,
- Recourse claims pursuant to § 445a and § 445b of the German Civil Code (BGB),
12.2 Other contractual and tort claims are subject to the statutory limitation periods, unless otherwise expressly provided in these General Terms and Conditions and to the extent permitted by law.
B. Modules by Service Model
1. Delivery of Goods (Purchase/Delivery of Our Own Products)
All provisions of the General Provisions set forth in Section A of these Terms and Conditions apply here.
2. Contract Manufacturing / Contract for Services (Processing of Goods Provided by the Customer)
In addition to the provisions set forth in the General Provisions of these Terms and Conditions, the following specific provisions apply to the contract models listed below:
2.1 Claims for Compensation in the Event That the Purchaser Fails to Deliver Materials to the Supplier’s Plant in Full and on Time
2.1.1 Upon placing the order, the Customer agrees to deliver the materials to be processed, as specified in the order confirmation, in full and on time to the Supplier’s plant. The date specified in the order confirmation applies by 6:00 a.m. at the latest, unless the customer cancels the order to reschedule the date within 2 business days of receiving the order confirmation in writing; thereafter, the date of the delivery date agreed upon at that time shall apply.
2.1.2 If the purchaser fails to meet the delivery date, it shall be presumed—subject to proof to the contrary—that the purchaser is at fault. Even in cases of simple negligence on the part of the purchaser, the purchaser shall reimburse the supplier for the costs of the production downtime in the amount of the contractually agreed order price. In the event of a delayed delivery, the compensation amount shall be calculated based on the number of production days lost divided by the total number of production days documented in the order confirmation. If the customer can prove to the supplier that the actual damage was less, that amount shall apply. If the supplier, at short notice, utilizes the production facilities reserved for the customer to fulfill a third-party order, the claim for reimbursement shall be reduced on a pro rata temporis basis according to the number of production days.
2.2 Type of Service, Acceptance, Transfer of Risk
2.2.1 The Supplier shall perform work on materials or products provided by the Purchaser.
2.2.2 Acceptance shall take place upon notification by the Supplier that the goods are ready for acceptance. The purchaser shall conduct the acceptance immediately, but no later than within 5 business days after notification, unless a different deadline is agreed upon in individual cases. If acceptance is not carried out within this period without a valid reason, the work shall be deemed accepted.
2.2.3 Upon acceptance, the risk of accidental loss and accidental deterioration of the work passes to the customer. In the event of a delay in acceptance, the risk passes upon notification that the work is ready for acceptance.
2.3 Materials to Be Provided; the Purchaser’s Duty of Care
2.3.1 The Customer shall provide the materials to be processed in a timely manner, free from third-party rights, in accordance with the specifications set forth in the contract, and suitable for the agreed-upon process. The Supplier shall not inspect the packaged materials provided. The Supplier is only required to notify the Purchaser if the materials are obviously unsuitable for processing. In such cases, the Supplier has the right to suspend processing until the matter is clarified. The Customer shall reimburse the Supplier for any additional costs incurred as a result, in accordance with the provisions in Part B, Sections 2.1 through 2.1.2.
The purchaser specifically warrants that the materials provided are free of contaminants and comply with the agreed-upon specifications. The purchaser is responsible for ensuring the quality of the materials and packaging provided. The purchaser is also responsible for quality assurance during their processing and packaging at the plant.
2.3.2 Any additional expenses or damages resulting from materials provided by the Purchaser that are unsuitable, defective, contaminated, or do not conform to specifications shall be borne by the Purchaser, provided that the Supplier is not at fault to a significant degree. The Supplier is only required to report obvious defects in the materials provided by the Purchaser. The limitations set forth in Part A, Sections 11.1–11.7 of these Terms and Conditions shall apply to any damages resulting therefrom.
2.4 Production Standard
With regard to the commissioned processing, the supplier offers the following production standards:
Technical Standard = Purity: 95–98%
Hygiene Standard = Purity: 98–99%
High-purity standard: Purity = 99–99.8%.
Unless the contracting parties agree otherwise, the supplier shall perform the contracted work solely in accordance with the “Technical Standard.” The customer shall be liable for any contamination of the end product resulting therefrom.
2.5 Product Losses
The customer is hereby notified, prior to the conclusion of the contract, that losses of the supplied materials are inevitable during processing (e.g., material buildup, suction losses, etc.). The purchaser is hereby notified that such losses may amount to up to 2.5% (by weight) of the respective raw material per processing operation or process step and are technically unavoidable. The aforementioned percentage losses are considered an agreed-upon tolerance, provided they are not attributable to culpable conduct on the part of the supplier.
2.6 Custody and Assumption of Risk for Items Provided
2.6.1 The supplier shall store the materials provided with the care expected of a prudent businessperson.
2.6.2 The risk of accidental loss or accidental deterioration of the goods provided shall be borne by the purchaser; the supplier shall be liable in this regard only in accordance with Part A of these Terms and Conditions.
2.6.3 The Purchaser shall maintain adequate property insurance for the materials provided. Upon request, the Supplier shall arrange for appropriate insurance at the Purchaser’s expense.
2.7 Contractor’s Lien, Right of Retention
2.7.1 The supplier is entitled to a statutory contractor’s lien (§ 647 BGB) on the materials provided and the finished goods in connection with the claims arising from the respective order.
2.7.2 The supplier is entitled to refuse to release the goods until its claims have been paid in full.
2.8 Rights in the Event of Defects
2.8.1 In the event of defects in the work performed, the Supplier shall provide remedial performance. If the remedial performance fails, becomes unreasonable, or is unjustifiably refused by the Supplier, the Purchaser may reduce the payment or—in accordance with statutory provisions—withdraw from the contract.
2.8.2 The amount of claims for damages is governed by Part A, Sections 11.1–11.7 of these Terms and Conditions. The statutes of limitations applicable hereto are set forth in Part A, Section 12 of these Terms and Conditions.
2.9 Distributor and Compliance Roles
2.9.1 The purchaser remains the entity placing the products it manufactures and distributes on the market and is responsible for conformity, labeling, marketability, and traceability, unless otherwise expressly agreed.
2.9.2 The Supplier shall support the Purchaser to the extent agreed, in particular by providing relevant documentation (e.g., process parameters, approval samples).
2.9.3 To the extent that the Supplier affixes labels, labels, or other information at the Purchaser’s instruction, the Purchaser shall be liable for the legality of their content and shall indemnify the Supplier against any claims by third parties in this regard, unless the Supplier has clearly implemented the markings incorrectly.
C. Supplementary Provisions Regarding Sections A. and B. of These Terms and Conditions
1. Reservation of the Right to Self-Supply
1.1 Delivery is subject to the Supplier’s own correct and timely delivery from a corresponding covering transaction. The Supplier is entitled to withdraw from the contract if, despite having entered into a corresponding covering transaction, the Supplier does not receive the goods for reasons beyond its control.
1.2 The Supplier shall promptly notify the Purchaser of the unavailability of the service and shall promptly refund any payments already made.
1.3 If the disruption lasts longer than 90 days, both parties are entitled to terminate the contract with respect to the portion that has not yet been fulfilled.
2. Force Majeure
2.1 Events of force majeure and other unforeseeable circumstances beyond the control of the parties (in particular, natural disasters, epidemics/pandemics, governmental measures, significant supply chain disruptions, energy shortages, strikes/lockouts) shall release the affected party from its performance obligations for the duration and to the extent of the disruption.
2.2 The parties are required to inform each other of the effects of the disruption and to agree on reasonable adjustments (e.g., deadline extensions, partial deliveries).
2.3 If the disruption continues for more than 90 days, either party may terminate the contract with respect to the obligations that have not yet been fulfilled.
3. Choice of Law, Jurisdiction, CISG
3.1 German law shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the conflict-of-laws rules of private international law that refer to another legal system.
3.2 If the purchaser 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 out of or in connection with the contractual relationship—to the extent permitted by law—shall be Frankfurt am Main, Germany. However, the Supplier is also entitled to bring a claim against the Purchaser at the Purchaser’s general place of jurisdiction.
