Terms and Conditions

General Terms and Conditions of Sales
(December 2023)

§1 Scope of application

We, Polygon Chemie AG (hereafter known as Polygon), only supply to Buyers under the following terms and conditions of sale and delivery. If the Buyer has purchasing terms which differ from, are contrary to, or are more extensive than, these T&Cs, they shall not become an integral part of the contract—even if we are aware of them, unless POLYGON expressly agrees in writing that they shall apply. It shall be the version of these Terms and Conditions of Sale and Delivery which shall apply at the point in time at which the contract is signed.

 

§2 Offer and Acceptance of the offer

1. Our offers shall be subject to change without notice. Orders shall only become binding for us if and insofar as we confirm them in writing or have begun to carry them out. Verbal agreements, promises and guarantees made by our employees – with exception of organs and signatories registered in the commercial register – in connection with entering into a contract shall only become binding with our written confirmation. Any waiver of this requirement for written form must likewise be made in writing.
2. Supplementary clauses for the description of the goods such as “approximately”, “as already supplied”, “as ever” or similar supplements in our offers refer only to the quality or quantity of the goods, not however to the price. Such information in the Buyer’s orders shall be understood by us accordingly.
3. Our confirmations of quantities are approximative within the threshold figures of usual trade. In the event that they are delivered in attachable tanks or permanently attached tanks, as well as in silo trucks, discrepancies of +/- 10% of the agreed volume shall be regarded as being in compliance with the contract. Such volume discrepancies shall increase or decrease the invoiced amount accordingly.

 

§3 Purchase price and Payment

1. If not stated otherwise, our prices do not include VAT. VAT is additional as far as has to be paid by law.
2. The purchase price shall be due for payment net cash upon delivery of the goods. Periods allowed for payment shall begin on the invoice date. The deduction of a prompt payment discount shall be subject to a separate written agreement. If payment is not made in full within the specified period, the Buyer shall be deemed by law to be in default of payment, without requirement of a formal warning.
3. If the payment date expires without payment, we are entitled to charge interest in the amount of 5 percentage points above the base rate of the German Bundesbank.
4. In the event of default of the Buyer, we shall charge default interest amounting to 9 percentage points p.a. above base rate of the German Bundesbank plus an additional lump sum amounting to 40.00 Euro. We shall reserve the right to assert further damages.
5. Normal bank charges for handling payment transactions shall be for the Buyer’s account.
6. Insofar as public duties concerning the importation or distribution of the goods (e.g. taxes or customs duty) are increased or introduced between the point in time at which the contract is entered into and delivery, we shall be entitled to adjust the purchase price accordingly. We shall submit proof of these costs to the Buyer upon request.
7. In case our purchasing cost for goods which we do not produce ourselves significantly increase (by more than 10%) and this was not anticipatable (e.g. due to force majeure, strike, lockout, epidemic or pandemic situations, governmental measures and/or market interventions), we are allowed to increase the agreed sale price accordingly.
8. If there are substantiated doubts as to the Buyer’s solvency, in particular if he is in arrears with making his payments, we shall be entitled to revoke terms of payment we have granted him and to make the rest of his outstanding debt to us payable, as well as to demand cash in advance or securities for subsequent deliveries. We may retain or reject some or all subsequent deliveries not only from the respective contract, but also from other contracts too and demand immediate payment for all deliveries in cash.

 

§4 Deliveries

1. Agreed terms of delivery are valid as per the INCOTERMS of the International Chamber of Commerce in force at the point in time at which the contract is signed.
2. The agreed delivery periods and dates shall always count as being approximations, unless a fixed date has expressly been agreed as such in writing.
3. We shall be entitled to make part-deliveries in partial quantities the Buyer can reasonably be expected to accept in commercial transactions. The Buyer shall be obliged to pay for the partial quantities received.
4. In the case of deliveries which do not affect our business (drop shipments), the delivery date and period shall be deemed to have been complied with if the goods leave the place of delivery in such good time that, given normal transport times, the delivery arrives at the recipient’s premises in good time.
5. Delivery periods shall be extended as appropriate if we are prevented from fulfilling our obligations through no fault of our own. Such cases can be delays caused as a result of us not being supplied on time by our own suppliers, normal transport times being exceeded, strike, epidemic or pandemic situations, governmental measures and/or market interventions, force majeure, operational disruptions for which we are not responsible (e.g. as a result of damage from fire, water or other elements or damage to machinery) and all other disruptions for which we are not responsible from an objective viewpoint. We shall inform the Buyer immediately of such delays. In such a case both Parties shall only be entitled to have a right of withdrawal from the contract after the delay has lasted for more than six months.

 

§5 Retention of title

1. The title to the goods (goods subject to retention of title) shall only pass over to the Buyer after the full purchase price has been paid and all other debts under the business relationship with us, including those materialising in future, have been settled. This shall also apply if payments are made for specifically mentioned invoices. If there is an open account arrangement, the retained title shall be regarded as a security for our outstanding balance claim.
2. As long as the Buyer fulfils his obligations to us properly, he shall be authorised to resell the goods subject to retention of title in a normal commercial transaction subject to the condition that his claims created by the resale pass over to us in accordance with e).
3. If the Buyer fails to fulfil his payment obligations even after he has been set a subsequent period of time to do so, we shall be entitled to demand the return of the goods subject to retention of title without having to set him another period of time and without having to state the withdrawal from the contract. For the purpose of taking back the goods, we are entitled, if necessary, to enter the buyer’s premises.
4. The processing or treatment of the goods subject to retention of title shall be carried out for us without placing us under any obligations. We shall be regarded as the manufacturer and we shall acquire the title to the interim and finished products in proportion to the invoiced value of our goods subject to retention of title to the invoiced value of the goods not owned by us. Given this, the Buyer shall keep our title in safekeeping for us as a trustee and free of charge. The same shall apply if the goods subject to retention of title are joined or mixed with goods not belonging to us.
5. The Buyer hereby assigns the claims against third parties materialising as a result of the resale of the goods subject to retention of title to us as a security for our claims. If the Buyer sells the goods to which we hold a share of the title in accordance with letter d), he shall consequently assign to us the claims against third parties to cover our corresponding share of the value of the said claim. If the Buyer uses the goods subject to retention of title as part of a contract for services or for a similar contract, he shall consequently assign the corresponding claim to us.
6. The Buyer is authorised to collect the debts from a resale of the goods subject to retention of title in a proper commercial procedure. If we become aware of facts indicating a significant deterioration in the Buyer’s financial status, the Buyer shall, at our request, have to notify his buyers of the assignment, refrain from disposing the claims by any means, and pass over to us all the necessary information about the goods covered by our retention of title he has in his possession and the claims assigned to us as well as the documents required for asserting the claims assigned to us. We are to be informed straightaway of third party seizures of the goods subject to retention of title and the assigned claims.
7. If the value of the securities to which we are entitled should exceed the total account payable by the Buyer to us by more than 50%, we shall, at the Buyer’s request, be obliged to release securities of our choice.

 

§6 Liability for quality

1. The internal and external characteristics of the goods shall be determined by the agreed specifications, and in the absence of these by our product descriptions, marks, and specifications, and in the absence of these, by practice and custom in the trade. References to standards and similar sets of regulations, information in safety data sheets, information about the usability of the goods, formulas provided, and statements in advertising media are not warrantees or guarantees, and neither are declarations of conformity. In particular, relevant identified uses in accordance with the REACH regulation (EC) No 1907/2005 shall not constitute an agreement or a corresponding contractual condition or a use assumed under the contract.
2. We shall only assume liability for the suitability of the goods for the use stipulated in the contract if and insofar as we have expressly confirmed the suitability of the goods for this use in text form. Insofar as the goods have the agreed quality according to § 6a or are suitable for the use presupposed according to the contract and confirmed by us in text form, the buyer cannot plead that the goods are not suitable for the usual use or have a quality which is usual for goods of this type and which the buyer has expected.
3. If we advise the Buyer in writing, verbally or by means of tests, this shall consequently be done to the best of our knowledge, but without any liability for us, and shall not exempt the Buyer from having to conduct his own test on the goods supplied to verify their suitability for the intended processes and purposes.
4. The samples provided by us as well as our technical and chemical information serve only for the general description of the goods. They do not contain any assurance of quality and they do not contain any guarantee of condition or durability and do not exempt the Buyer from having to inspect every single consignment.
5. The legal regulations shall apply for the inspection of the goods and the notification of defects to the provision that the Buyer has to inform us of potential defects in the goods in writing immediately. If the goods are delivered in packages, he shall also have to check the labels of each individual package to verify that they are in compliance with the order. Besides which, prior to drawing off the substance from tanks, he shall have to convince himself by taking samples in accordance with the usage normal in the trade that the condition of the goods is in compliance with the contract.
6. The Buyer shall have to inspect the goods immediately after receiving them and notify us immediately in written form within 7 working days from receipt at the latest of any quality defects there may be, incorrectly delivered goods or discrepancies in quantities. This obligation on the part of the Buyer refers to each individual part quantity in part deliveries.
7. Defects must be notified in writing to be valid and a specific presentation of the individual defects complained about shall be included (including photos and product samples, as applicable). The rejected goods must be left on site in their dispatch containers so that we are able to justify the claims.
8. The Buyer shall have to clarify whether the supplied goods are suitable for their intended purpose, in particular for further processing, in good time prior to commencing such work. With the beginning of the processing or treatment, mixing or combining of the goods with other goods, the goods supplied by the Buyer shall be regarded as having been approved in compliance with the contract. Thereafter compensation claims for damages shall not be admitted.
9. Potentially concealed defects must be notified by the Buyer in writing immediately after noting the defect, no later however than within the period of limitation in accordance with section 7 c).
10. If notified defects have been sent in on time and are justified, we may at our choice rectify the defect or supply fault-free new goods (cure). If the cure is unsuccessful or if we refuse to effect a cure, the Buyer shall be entitled to his legal rights. If the defect is minor and / or if the goods have already been sold, processed or converted, the Buyer shall only be entitled to reduce the purchase price.
11. No other claims will be admitted in accordance with Section 7. This shall apply in particular for compensation claims for damages not incurred on the goods themselves (Consequential harm caused by a defect).

 

§7 General Limits of Liability and Period of Limitation

1. We – including our senior staff and other agents – can only be held liable on account of a breach of contractual and non-contractual duties, in particular on account of impossibility, default, and tortious act in cases of intent and gross negligence. Our liability in such cases shall be limited to the foreseeable damages typical for the contract when the contract was signed. Furthermore, we cannot be held liable for damages or consequential harm resulting from defects.
2. Unless agreed otherwise, contractual claims accruing to the Buyer against us on the occasion of and in connection with the delivery of the goods and the rendering of our other services shall become time-barred one year from the delivery of the goods. Our liability on account of breaches of duty attributable to intent or gross negligence, and damage to life, body, and health culpably caused by us as well as compulsory law shall not be affected.

 

§8 Final Provisions

1. The place of jurisdiction shall be at our choice the courts at our principal place of business, or at the Buyer’s principal place of business.
2. Swiss law shall apply. The current version of the UN law on sales (Convention on Contracts governing the International Sale of Goods [CISG] dated 11 April1980) in force shall not apply.
3. The invalidity or unenforceability of any provision or part of provision of this agreement shall not affect in any way the remaining provisions, which shall be construed as if such invalid or unenforceable part did not exist. The invalid provisions are consequently to be replaced by those arrangements coming closest to the economic objective of the contract subject to appropriate consideration of the interests of both Parties.
4. All agreements, drafting into specific terms, amendments or addenda to the contracts entered into between the Parties as well as their termination must be made in writing. This shall also apply for the cancellation of this formal requirement for written form itself.
5. Insofar as these Terms and Conditions of Sale and Delivery demand that individual declaration be made in writing, text form (e.g. fax or email) shall also suffice.

 

 

General Terms and Conditions of Purchase
(December 2023)

§1 Validity

1. These General Terms and Conditions of Purchase shall apply to all – also future – orders for goods, services and contract work of Polygon Chemie AG, Olten, Switzerland and its sister company STELLADIS GmbH, Hamburg, Germany (hereinafter for both together: “Polygon” or “we“) and their proceedings with suppliers. Any terms and conditions of the supplier conflicting with or deviating from these General Terms and Conditions of Purchase shall only be accepted by us upon our written consent. We expressly object to any general terms and conditions of the supplier. They shall also not be binding on us if we have not expressly objected to them again after receipt by us. If we accept the goods without clear objection, it can in no case be inferred from this that we have accepted the supplier’s conditions.
2. In the event of a contract between us and the supplier, the clauses agreed between the two parties shall apply. For topics not regulated by the contract, these General Terms and Conditions of Purchase shall apply.
3. The INCOTERMS^® in their current version shall be decisive for the interpretation of trade terms.

 

§2 Prices

The agreed price is a fixed price. Unless otherwise agreed, the prices stated in the order, including all discounts and surcharges, are fixed prices (plus statutory VAT, if applicable) free place of destination including packaging costs in accordance with the agreed INCOTERMS^®.

 

§3 Payment

1. In the absence of any other agreement or more favourable conditions from the supplier, payments shall be made within 14 days less 3% discount or 30 days after the start of the payment period pursuant to § 3 b).
2. Payment and discount periods shall run from receipt of the invoice, but not before receipt of the goods or, in the case of services, not before their acceptance and, if documentation, test certificates (e.g. works certificates) or similar documents are part of the scope of services, not before their handover to us in accordance with the contract.
3. Payments shall be made by bank transfer; each party shall bear its own bank charges.
4. Interest on arrears cannot be claimed. The default interest rate is 5%. In any case, we are entitled to prove a lower damage caused by default than demanded by the supplier.
5. We shall be entitled to rights of set-off and retention to the extent provided by law.

 

§4 Delivery, Delivery Periods / Delay in Delivery

1. For each consignment, a delivery note must be handed over immediately upon delivery at the place of destination, showing the date and number of the order, the mark and number of the packaging, the number of pieces or quantity, and the description of the items delivered. Furthermore, all documents, certificates or similar required in the order or in principle must be available to us at the latest upon arrival of the delivery. There must be a comprehensible connection between the delivery note and the certificate, analysis or similar, e.g. identical order or batch number. For all consignments, the numbers of items, quantities and weights determined by the customer upon receipt shall be decisive for the calculation.
2. Delivery dates and deadlines agreed in text form are binding. Impending delays in delivery must be notified to us immediately in text form. At the same time, suitable countermeasures to avert the consequences shall be proposed to us.
3. Unless otherwise agreed in text form, the date of the transfer of risk in accordance with the agreed INCOTERMS® or, in the case of drop shipment, the date of arrival at our buyer/customer shall be decisive for compliance with the delivery date or delivery period.
4. In the event of a delay in delivery on the part of the supplier, we are entitled to demand lump-sum damages for the delay in the amount of 1% of the delivery value per completed week, but not more than 10%. The supplier shall be entitled to prove to us that no damage or significantly less damage has been incurred as a result of the delay. We reserve the right to assert further legal claims instead of the lump-sum damages, in particular the assertion of higher damages for delay as well as withdrawal or damages for non-performance.
5. The supplier may only invoke the absence of necessary documents to be supplied by us if he has not received the documents within a reasonable period despite a written reminder.

 

§5 Retention of title

1. With regard to the supplier’s rights of retention of title, the supplier’s terms and conditions shall only apply insofar as this is provided for by law and with the proviso that ownership of the goods shall pass to us upon payment thereof and, accordingly, the extension form of the so-called current account reservation shall not apply.
2. On the basis of the retention of title, the supplier can only demand the return of the goods if he has previously withdrawn from the contract.

 

§6 Execution of deliveries and transfer of risk

1. The risk in the goods shall pass in accordance with the agreed INCOTERMS^® in their current version.
2. Partial deliveries require our consent.
3. Excess or short deliveries of goods delivered in bulk are only permitted within the customary trade limits of +/- 10%.
4. Packaging costs shall be borne by the supplier unless otherwise agreed in text form. If we bear the costs of packaging in an individual case, this shall be charged to us at market conditions. The packaging must comply with the standards of the country of destination. The obligation to take back the packaging shall be governed by the statutory provisions of the country of destination. The costs for the return transport and/or the disposal of the packaging shall be borne by the supplier. If no country of destination has been agreed between the parties, Germany shall be the country of destination.

 

§7 Declarations of originating status

1. At our request, the supplier shall provide us with a certificate of origin or a supplier’s declaration on the preferential or non-preferential origin of the goods.
2. In the event that the supplier makes declarations concerning the preferential or non-preferential originating status of the goods sold, the following shall apply:
   1. The supplier undertakes to enable the verification of proofs of origin by the customs administration and to provide both the information required for this purpose and any necessary confirmations.
   2. The supplier is obliged to compensate for the damage caused by the fact that the declared origin is not recognised by the competent authority as a result of faulty certification or lack of the possibility of verification, unless he is not responsible for these consequences.

 

§8 Warranty, quality, compliance

1. The ordered products must comply with the supplier’s specifications available to us and, if applicable, other written agreements. We must be informed of any deviations proactively and without being asked before delivery. The supplier declares that the delivered products (including all ingredients in the case of mixtures) comply with the legal requirements of the country of destination. For deliveries destined for the European Union, this applies in particular to Regulation (EC) 1907/2006 (REACH) and Regulation (EC) 1272/2008 (CLP) in their current version. If no country of destination has been agreed between the parties, Germany shall be the country of destination.
2. With regard to compliance with the statutory provisions, in particular those of Regulation (EC) 1907/2006 (REACH), the supplier undertakes:
   1. To provide us with the required data, including composition of mixtures, to enable us to fulfil our legal obligations under the said regulation;
   2. In particular, to comply with the obligation to observe the limit of the maximum permitted quantity resulting from the tonnage band of the registered substances;
   3. To assist us with all the data required so that we can provide proof that the product complies with the legal requirements in the event of an inspection by the authorities; the data required must be supplied immediately in order to avoid standstill times at customs.
3. Insofar as applicable and not otherwise agreed, the supplier shall maintain a quality assurance system, e.g. in accordance with DIN EN ISO 9001. We are entitled to inspect the system after consultation.
4. The supplier is always obliged to provide all documents required for customs clearance without being requested to do so. The supplier shall inform us immediately, without being requested to do so, of any pending conversions or changes to the goods.
5. The supplier shall indemnify us against claims and demands of third parties due to non-compliance with the regulations described above.
6. The supplier confirms that its business activities are in compliance with the legal, in particular statutory, regulations applicable to it as well as the contractual agreements made with us. The supplier further confirms that it has taken sufficient organisational measures in its company to ensure compliance with the requirements described in the preceding sentence at all times.
7. The supplier is strictly prohibited from offering, promising or granting an advantage to an employee of ours or an agent of ours in return for giving unfair preference to the supplier or another third party in the procurement of goods or services, or offering, promising or granting an advantage to the supplier or a third party in return for performing or refraining from performing an act in the procurement of goods or services and thereby breaching its obligations towards us. If the supplier violates this prohibition, we may terminate the contract with immediate effect.

 

§9 Liability and limitation

1. The supplier shall provide us with the goods free of material defects and defects of title. In particular, he shall be responsible for ensuring that his deliveries and services comply with the recognised rules of technology and the contractually agreed quality.
2. The goods shall be inspected for quality and completeness at our premises after receipt in accordance with customary commercial practice and to the extent that is reasonable and technically possible for us. In the absence of concrete indications of a defect, only examinations of the external condition visible to the naked eye shall be deemed reasonable within the scope of the incoming inspection, but not examinations of the internal condition of the goods. Notifications of defects shall be deemed to be in time if they are received by the supplier within ten days by letter, e-mail, fax or telephone. The period for notification of defects shall commence at the time at which we – or in the case of drop shipment our customers – have or should have discovered the defect.
3. If the goods have a material defect, we shall be entitled to the statutory rights at our discretion. A remedy by the supplier shall be deemed to have failed after the first unsuccessful attempt. We shall also have the right to withdraw from the contract if the relevant breach of duty by the supplier is only insignificant.
4. We may also demand compensation from the supplier for those expenses in connection with a defect which we have to bear in relation to our customer if the defect was already present when the risk passed to us.
5. The statutory limitation periods shall apply to our claims for defects.
6. The supplier hereby assigns to us – on account of performance – all claims to which it is entitled against its suppliers on account of and in connection with the delivery of defective goods or goods lacking guaranteed characteristics. He shall hand over to us all documents required for the assertion of such claims.
7. The supplier shall be responsible for all claims asserted by third parties for personal injury or property damage attributable to a defective product supplied by him and shall be obliged to indemnify us against the resulting liability on first demand.
8. If we have to take back goods due to quality defects, the supplier shall reimburse us for the costs associated with the outward and return delivery (transport, customs, taxes, etc.). We have the right to demand from the supplier the immediate return of the rejected goods and the reimbursement of the costs associated with the outward and return delivery, if necessary also the costs of disposal of the goods. If the supplier does not take back the goods within one month, we are entitled to charge the supplier 0.20 Euro/kg per month or part thereof for the storage of his defective goods.
9. If we are obliged to carry out a recall action or product warning towards third parties due to a defect in a product supplied by the supplier, the supplier shall bear all costs associated with the recall action or product warning, in particular also the costs of legal action and an appropriate clarification of the facts. We shall inform the supplier of the content and scope of the recall measure to be carried out, insofar as this is possible and reasonable, and give him the opportunity to comment.
10. The supplier undertakes to name the respective manufacturer, importer or pre-supplier with regard to the contractual products delivered by him upon our request without undue delay, at the latest, however, within 2 weeks, as well as to provide us without undue delay with useful evidence for the defense against product liability claims of third parties, such as, in particular, manufacturing documents and documents showing production and delivery batches and/or production and delivery dates.
11. The supplier warrants that no industrial property rights or trade secrets of third parties are infringed by products delivered by him. The supplier is obliged to indemnify us against all claims made against us by third parties due to the infringement of industrial property rights or trade secrets and to reimburse us for all necessary expenses in connection with this claim. The supplier is obliged to keep this risk sufficiently insured and to provide us with proof thereof upon request.

 

§10 Code of Conduct

Polygon is a member of the ALANTANA Group. The ALANTANA Group has adopted a Code of Conduct which summarises various legally applicable standards. By accepting our order, the supplier declares to observe the standards of this Code of Conduct in their current version and to encourage its employees and its subcontractors to observe them. The documents are available on the website www.polygon.ch/ or will be made available by us upon written request.

 

§11 Place of jurisdiction and applicable law

1. The place of jurisdiction is, at our discretion, our registered office or the registered office of the seller.
2. Swiss law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980, as amended.
3. Should any of the above provisions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid provisions shall be replaced by provisions which come as close as possible to the economic purpose of the invalid provision.
4. All agreements, concretisations, amendments or supplements to the contracts concluded between the parties as well as their termination must be in writing. This also applies to the waiver of this formal requirement itself.
5. Insofar as written form is required for individual declarations in these General Terms and Conditions of Purchase, text form (e.g. e-mail) shall also be sufficient for compliance.