General Terms Agreement (GTA) of ©helios lubeoil®
a) This GTA apply for all contracts regarding deliveries or other services provided by Helios lubeoil towards its customers. The GTA shall also form part of all future contracts, even if not named explicitly.
b) In the event the terms of this GTA are in any way contradictory to the terms and conditions issued by the customer, the terms of this GTA shall prevail without further contradiction of Helios lubeoil.
c) The customer agrees to a collection of his personal and company data according to § 14 of the German Federal Data Protection Act.
2. Offer, Order and subsidiary agreements
a) Offers of Helios lubeoil are always subject to confirmation. Orders are deemed accepted only if confirmed in writing by helios lubeoil.
b) All agreements including subsidiary agreements, warranties and changes are subject to written confirmation by Helios lubeoil. Changes to or deletion of the requirement of written form are subject to a confirmation in writing by both parties. Field staff of helios lubeoil are only permittedto enter into contracts, reception of orders, subsidiary agreements, changes to contracts andcollection only with written authority of helios lubeoil.
c) Given order is binding for the customer. The order shall be deemed to be accepted in case of written confirmation of Helios lubeoil or by delivery. In the event the delivery takes place without any order confirmation, the delivery note shall be deemed to be the order confirmation. d) Order on account are accepted subject to the positive economic financial information, we use the usual national and international credit bureaus. Guests are kindly requested to pay by credit card.
3. Resignation of customer
In case the customer resigns from his order without cogent reason or in case of rejection of delivery, helios lubeoil shall be entitled to repudiation of the contract and to claim damages due tononperformance after an adequate grace period. helios lubeoil may on its own discretion claimthe resulting damages or liquidated damages with an amount equaling ten per cent of the agreed price.
b) The customer is allowed to prove that the resulting damage is less than the damages claimed by helios lubeoil.
4. Prices, Payment and Delay of Payment
a) The prices offered are subject to confirmation. In case no price was defined in advance the price of Helios lubeoil valid at the time of delivery shall apply. All prices are calculated net from the places of distribution or acceptance. In the event of delivery carriage paid the transportation costs are compensated with payment of the invoice if nothing deviatory is agreed upon.
The by law applicable value added tax will invoiced in addition to the product price. Changes to the VAT rate by law will be charged to the customer.
b) In case additional taxes, customs duties or other public fees or rising freight cost, handling charges, cost for shipment these will be added to the product after entering into the contract and prior to delivery not reasonably foreseeable by helios lubeoil these will be proved and additionally charged to the customer. Same is applicable in case of force majeure and events and circumstances according to paragraph 7 of this GTA. The same applies for taxes, custom duties and charges of any kind subsequently and supplementary claimed by state or government authorities. Helios lubeoil is entitled to resign from the contract in case the customer refuses to accept the price increase reported. There shall be no obligation for Helios lubeoil to indemnify the customer.
c) Payment is due immediately after receipt of invoice by customer or at the due date without deduction. Payable to a bank account indicated by helios lubeoil or to a person authorized by Helios lubeoil for collection. Payments are effectively valid at the date helios lubeoil is in the position to dispose freely of the amount of payment without loss. Orders to pay, cheques and bills of exchange are accepted on helios lubeoils discretion on account of performance only but not accepted in satisfaction of a claim. Helios lubeoil expressly reserves the right to refuse acceptance of above mentioned means of payment. Incoming payments in an ongoing customer relationship will be recorded in accordance with §§ 366, 367 BGB. We contradict a different repayment provision on your part.
d)The customer shall be obliged to pay all collection fees, discount and bill charges.
The passing on and prolongation of bills shall not be deemed to be fulfillment. Payments or partial payments of the customer will be accounted according to § 367 BGB, otherwise they will be accounted against the oldest claim.
e) The customer proves his solvency by acknowledging the order. In case of reasonable suspicion later on helios lubeoil shall be entitled to make the further performance of the contract dependant on receipt of a down payment or provision of security or to resign from the contract. In the event of late payments or in case the customer is otherwise delayed with payments due, Helios lubeoil shall charge interests due according to § 353 HGB at an amount in accordance with bank practices for non-allowed overdrawals beginning at the due date of the payments. The minimum amount to be charged shall be 8,0 % above the actual applicable key rate of interest of the European Central Bank. Demands for payment are charged with cost incurred for making request for payment besides default interests from due date at an amount of the interest loss incurred by Helios lubeoil but at a minimum amount of 8,0 % above the actual applicable key rate of interest of the European Central Bank.
f) Payments shall be made in Euro. Additional costs incurred due to payments made in other currencies shall be paid by the customer. Helios lubeoil reserves the right to refuse acceptance of payments in other currencies.
g) In the event the customer does not fulfil his obligations to pay or his obligations according to
the reservation of title (paragraph 13) or in the event helios lubeoil gets known circumstances that are detrimental to the creditworthiness of the customer, or in case a bill or a cheque of the customer gets protested, or if insolvency proceedings to the property of the customer are opened all residual debts shall forthwith become due even if bills with later due date are in circulation or prolongation of payment was agreed upon. As long as the customer has not proved acceptable security, Helios lubeoil shall be allowed to demand the immediate return of property under exclusion of any rights of retention. Notwithstanding the foregoing Helios lubeoil shall have all rights to claim for damages. All cost arising from the re-taking possession of the products will be borne by the customer.
5. Assignment, Set-Off, Right of Retention
The customer shall only be permitted to make a set-off against claims of Helios lubeoil in case of no denial against the counterclaim by helios lubeoil or an existing title res judicata.
6. Delivery and Taking of Delivery
a) Lead times are not binding except for being explicitly mutually agreed upon between the customer and Helios lubeoil. In case the delay of delivery is due to circumstances described in
article 7 of these GTA, Helios lubeoil shall not be held liable. If such a delay occurs the lead times shall be prolonged accordingly for the duration of such circumstance.
b) Delivery of goods shall be at the place of loading of Helios lubeoil EXW CIA. The goods will be forwarded on account of and for risk of the customer from the time of handing over to third persons such as, but not limited to, forwarding agent, freight forwarder etc. not depending on the place of dispatch. The same applies for partial deliveries and independent of either delivery carriage paid by the customer or delivery carriage paid by helios lubeoil. The risks of goods and price shall be for the customer from the time of the goods leaving the place of loading even if the goods were shipped with vehicles or packaging of Helios lubeoil upon customer request.
d) Any delay caused by circumstances due to the customers responsibility will transfer the risk at the time of readiness for dispatch to the customer.
e) helios lubeoil will endeavor to respect the customer’s expectations regarding means of transportation and route without being obliged to always fulfill the expectations. Helios lubeoil shall not be liable for the chosen means of transportation always being the cheapest one.
f) Call for and taking of delivery shall take place at the time agreed, but latest at the end of the month of placement of order.
Partial or split deliveries shall be allowed at any time. Deliveries by installment shall take place in equal periods of time if not explicitly otherwise agreed upon.
g) helios lubeoil will endeavor to respect changes requested by the customer regarding calls for delivery but shall not be obliged to. Any additional cost related to changes requested by the customer shall be borne by the customer.
7. Excusable Delay
Helios lubeoil shall not be liable for delay in performing or for failure to perform its obligations if the delay or failure results from Force Majeure. “Force Majeure” shall mean any event(s) or circumstance(s) beyond the reasonable control of helios lubeoil after the exercise of reasonable diligence and any event(s) which are not reasonably foreseeable and or planned for by Helios lubeoil (including without limitation transportation or stocking problems, self-delivery with crude oil or finished products, fire, delivery restrictions by government or law, strikes, lockouts or other industrial action, whether of the affected party’s own employees or others) which impedes the due performance of the obligations of helios lubeoil or Helios lubeoil’s subcontractors and which by the exercise of all reasonable diligence Helios lubeoil is unable to prevent. Helios lubeoil shall resume work as soon as possible and make-up for lost time, but shall be allowed to extent
deliveries for the duration of the circumstances causing the delay and an additional initial period. If Helios lubeoil is prevented or impeded or expected to be delayed by reason which cannot be solved, Helios lubeoil shall have the right to cancel the affected order.
Customer claims regarding damages caused by delay or other damages shall be excluded because of Helios lubeoil not being responsible.
In the abovementioned cases the customer shall not be obliged to perform his counter performance. The customer is entitled to resign from the contract under exclusion of further claims if Helios lubeoil does not specify if delivery will take place or if the supply quantity will be restricted or if helios lubeoil chooses to resign from the contract within an appropriate period of time declared by the customer.
8. Supply Quantity, Insurance
a) For the adherence to certain feeding temperatures of the product any liability is excluded, unless Helios lubeoil explicitly assures the adherence of certain feeding temperatures. Helios lubeoil shall not be liable for the full utilization of packing and cargo weight.
b) The ascertainment of the supply quantity is effective and liable towards the customer by weighing with gauged scale or by officially licensed and gauged flow meter at helios lubeoil’s storage facilities or at the loading point.
For deliveries by tank truck the liable ascertainment of the supply quantity shall be made by measurement of the draining off product by officially licensed and gauged flow meter. The customer is obliged to ascertain himself prior to the filling process of the receipt printer being reset to zero. The customer verifies by his signature on the delivery receipt the correctness of the recorded data and quantities. c) It is the customers responsibility to enter into a suitable and adequate insurance agreement. Helios lubeoil will only enter in such an insurance agreement by prior written directions of the customer. In such event the cost of the insurance agreement shall be born by the customer.
9. Delivery Receptacles
Delivery receptacles which have been supplied by helios lubeoil or it’s partners on a loan basis shall only be used for transportation and storage means of the products delivered by Helios lubeoil. Diverging usage of the delivery receptacles entitles Helios lubeoil to immediate claim for the return of these. Receptacles on a loan basis delivered by truck are to be cleaned and set out ready for return immediately after drainage with concurrent announcement to Helios lubeoil regarding the pickup Receptacles on a loan basis delivered by train shall be cleaned and returned to the address of helios lubeoil Station Bremen-Hauptbahnhof (Bremen Central-Railway-Station) immediately after drainage. Risk and cost of provision and return of empties shall be borne by the customer.
b) Receptacles on a loan basis will be placed at disposal free of charge for a period of three months beginning at date of delivery. In case the receptacles will not be returend during this grace period, cost will be charged as follows: With beginning of the fourth month EUR 3.00 ea receptacle, EUR 13.00 ea container for every month commenced. In case the receptacles or containers are not returned during a period of six months from date of delivery, the customer shall be charged with the replacement cost plus Value-Added-Tax. After a period of six months from date of delivery helios lubeoil shall not be obliged to take back the trading units. The right of withdrawal remains with helios lubeoil at it’s own discretion. In case of the trading units being withdrawn by Helios lubeoil after expiration of the time limit of six month from date of delivery, the customer will receive a credit note for the calculated replacement cost deducted by the amount of rent for the related period of time. In the event of receptacles suffering a bad state due to usage by the customer, the credit note will be further deducted by the cost for compensation. c) The customer is liable for the received receptacles and in case of loss, destruction or damage shall be charged with the replacement or repair cost.
10. Feeding Process and Stocking Reservoirs of the Customer
a) During the feeding of stocking reservoirs of the customer (tanks, barrels and container) the liability regarding the suitability in accordance with the regulations and faultlessness of the stocking reservoirs and the feeding gear shall be born by the customer.
helios lubeoil’s legal obligations regarding duty of inspection and checking shall not act as protection obligation towards the customer. They shall not release the cutomer from his obligations of checking and inspecting the connecting terminals and feeding pipes regarding their suitability, faultlessness, cleanliness, capacity, technical defects etc according to the legal regulations and immediately informing Helios lubeoil. The customer is obliged to monitor the feeding process either by himself or an authorized third person and to ensure the prerequisitions for the proper feeding process at his sole responsibility. He is further obliged to point out the correct couplings and reservoirs/tanks to the supplying staff, the correct quantity which can be borne by each reservoir/tank and to serve his cooperation duties during the feeding process. As far as Helios lubeoil incumbent special statutory audit and monitoring obligations, these do not lead to elimination of the previously enumerated the customer's obligations in relation to Helios lubeoil.
b) In the event that reservoires/tanks, connecting parts or feeding pipes are not appropriate or the customer is not serving his cooperation duties during the feeding process, helios lubeoil or personnel authorized by helios lubeoil shall be entitled to refuse the feeding. Damage to Helios lubeoil resulting in the above mentioned case shall be borne by the customer.
c) In the event that reservoires/tanks, connecting parts or feeding pipes are not appropriate or the customer is not serving his cooperation duties during the feeding process at all or not appropriate, helios lubeoil shall not be made liable for resulting damage to the customer. In this case the customer is obliged to release helios lubeoil from claims for damages against third parties resulting from above mentioned situation. and the customer is obliged to pay for the arising costs due to officially arranged damage correction or preventive actions.
11. Defect Warranty
a) The customer is entitled to warranty claims within the legal period of time of six months, beginning from date of delivery.
b) In this case the notification of defect shall take place prior to complete drainage of the receptacles/tanks/reservoirs used for transportation or prior to the consumption of the delivered quantity.
c) Obvious defects need to be reprimanded immediately towards Helios lubeoil on written basis in the commercial intercourse according to § 377 HGB, but latest in a period of 7 days from date of delivery. Authoritative for the calculation of the time limit is the receipt of the defect notice by Helios lubeoil.
d)In case latent defects or non recognizable defects are discovered by the customer, he shall immediately inform Helios lubeoil on written basis.
e)In any case of defect notice an inspection by helios lubeoil shall be guaranteed. In case Buyer objects to the delivered quality he shall send a sample of 500g of the deliverd good together with the written objection to Helios lubeoil for examination. In the event the defect notice turns out to be unsubstantiated, the Buyer is obligated to bear freight and examination cost.
f) In case the quality of the delivered goods turns out to be defective, the Buyer is only entitled to substitute delivery by Helios lubeoil. If Helios lubeoil is not in the position to deliver a substitute or the delivery of the substitute is unreasonably delayed, the Buyer is entitled to make use of his right of rescission or of a reduction in price.
g) In case of a defect notice the Buyer is obliged to keep the rights of recourse of Helios lubeoil against third parties, e.g. the Deutsche Bahn AG, and to take all necessary action in order tokeep up the assertation of claims and preservation of rights including preservation of evidence in coordination with or according to instructions of Helios lubeoil. From the moment Helios lubeoil has taken over the assertion of these rights, the liability of the customer is cancelled. In case quality features are set up between Helios lubeoil and the customer, Helios lubeoil will distribute analysis data or will refer to DIN-standards (German Industrial Standards) which in no case shall be a guaranty of the nature of the subject matter according to §443 BGB. The analysis data are typical average values, which are only handed down by Helios lubeoil and therefore helios lubeoil shall not be made responsible nor will warrant these data.
12. Other Liabilities
a) Claims for damages resulting in the impossibility of performance, in delay of performance, in positive infringement of an obligation of claim arising from contract, in fault at conclusion of a contract and in illegal action shall be excluded. Not withstanding the above the right of rescission under exclusion of all other rights applies to the customer, even in the event of actions according to para 11 of this GTA.
b) helios lubeoil only bears the liability for damages resulting in intentional or grossly negligent behavior of it’s legal agents or management.
c) The effective indemnification under above mentioned restraints is limited in height to the compensation of the damage typical foreseeable and unrulable by the customer. The indemnification is limited to the value of the particular delivery.
d) Claims for damages according to the Product Liability Act remain unaffected from this arrangement.
e) The customer is liable towards Helios lubeoil for the compliance with the customs regulations and the energy tax regulations to be obeyed by himself and his accepters. In case the customer does not clearly specify the mineral oil tax treatment desired prior to his order, Helios lubeoil will act at it’s own discretion.
f) The customer shall be made liable for any cost arising from mineral oil tax , §§ 60 ff. energy tax Act or from usage of the product contrary to the regulations, even without any fault on his part, which are claimed from Helios lubeoil.
13. Reservation of Title
a) Seller retains title to all delivered products until Seller has received payment in full for the purchase price for all delivered goods contained in the business relationship between Buyer and Helios lubeoil from Buyer. The allocation of single amounts in a current settlement or account on current account and balance overdrawal and their acknowledgement shall not affect the Reservation of Title. Settlement shall be effective with the first reception of the payment in full at Helios lubeoil. The give away of bills or cheques shall only be effective for settlement from the day the cheque has been cashed.
b) Until titel to the goods passes to Buyer in accordance with this article buyer shall hold the goods and each of them on a fiduciary basis as bailee for Seller. The delivered goods shall never become part of real estate or essential part of a standard subject. In case of processing, connecting or blending of the delivered goods with other goods by the Buyer Helios lubeoil shall be entitled to co-ownership regarding the goods in in proportion to the value of the delivered goods to the value of the other goods used for processing. The entitled co-ownership of helios lubeoil arising herefrom shall be retain the property in these processed goods according to this article.
c) Buyer shall store the goods at no cost to seller separately from all other goods in ist possession and marked in such a way that they are clearly identified as Seller’s property. Buyer shall insure and keep insured the goods to the full price against „all risks“ to the reasonable satisfaction of Seller until the date that title to the goods passes from Seller to Buyer, and shall whenever requested by Seller produce a copy of the insurance policy. With reception of payment in full the retention of title passes from Seller to Buyer.
d) Until Seller receives payment in full of the purchase price of such goods delivered to Buyer, Buyer shall not resell any such goods. Seller is not entitled neither to donate nor pledge or pledge as security for a debt the delivered goods At a stage of alienation prior to settlement of payment in full and with explicit acknowledgement and acceptation by Helios lubeoil, which shall only be allowed in non-ordinary cause of business, Seller herewith immediately assigns his claim against third party debtor to Helios lubeoil, which is accepted by Helios lubeoil. It is of no interest if Seller has sold the reserved goods with or without further blending or processing to one or more third parties.
Irrespective of the assignment and the collection right of Helios lubeoil the Buyer is entitled to assignment as long as he meets his liabilities towards Helios lubeoil and does not turn into property forfeiture. Upon request Buyer shall make information available to Helios lubeoil regarding collection of assigned claims and inform the debtors regarding the assignment. Further to above, Buyer shall disclose upon request of Helios lubeoil the full name and address and the full height of claim arising from contract existing against third party debtors.
e) Goods accepted as payment during resell by Buyer, especially in addition bills and cheques, shall pass to Helios lubeoil directly after reception. Buyer shall take possession of them for Helios lubeoil in the context of the contract of deposit. In case a third party is possessing the property,
handing over will be replaced by Buyer assigning his title upon claim for return of property towards Helios lubeoil.
f) The customer is obliged, during the duration of the reservation of title to keep the goods in proper condition.
g) The customer shall immediately inform Helios lubeoil by written notice regarding attachment (or seizure) of property of judgment debtor by court authorities or access of third parties to the goods reserved and to notify the pledge. The Customer shall bear cost of all actions taken for removal of the encroachment, especially of intervention cases if not born by the opposing party.
h) In case the existing securities exceed the value under consideration of and including the delivered goods during the duration of the reservation the total claim secured for more than 20% Helios lubeoil is obliged to unblock the exceeding securities at its own discretion upon request of the customer.
14. Revocation Right for Private Customers
Private Customers receive the right to withraw from the agreement of purchase and sale within
two weeks from date of delivery. The withdrawal is permitted only in case the product was fed into an empty and cleaned tank and no blending with remaining quantities has taken place. The withdrawal does not need to contain any reasons and shall be made in writing, on a lasting data medium or by return of the product during the two weeks aftre date of delivery. The customer is obliged to indemnify the supplier for the decrease in value or the complete value in case the product suffers from deterioration in quality, loss or impossibility of returning a chattel; Paragraph 357 HGB shall not apply.
15. Travel Costs
Travel costs and use of vehicle arising in the context of field service and working hours linked thereto will be charged to the customer by separate invoice.
16. Applicable Law, Place of Performance and Jurisdiction
a) Place of performance for all present and future claims related to the customer relationship shall be Bremen, Germany for both parties.
b) For customers as merchants, traders, legal persons of public law or legal public special funds (§ 38 Abs. 1 ZPO) or having their domicile of the company in foreign countries Bremen, Germany (Courts of Bremen City) shall apply as place of jurisdiction for all arising differences, even for actions regarding bills, documents and certificates
c) The law of the Federal Republic of Germany under exclusion of all international contracts regarding the international merchandise traffic.
In case one or more of the provisions contained in this agreement should be or become fully or in part invalid, illegal or unenforceable in any respect under any applicable law , the validity, legality and enforceability of the remaining provisions of this agreement shall not in any way be affected or impaired. Any provision which is fully or in part invalid, illegal or unenforceable shall be replaced by a provision which best meets the purpose of the replaced provision; the same applies in case of any comission.
helios lubeoil GmbH Co KG Bremen August 2019