1. Scope of validity
Deliveries by the Seller shall only be made in accordance with the following terms and conditions of sale and delivery. Any agreements or terms and conditions of the customer deviating from these require the express written consent of the Seller in order to be effective, insofar as they conflict with these terms and conditions. The Seller’s terms and conditions of sale and delivery shall become an integral part of the contract at the latest upon acceptance of the delivery.
2.1. The Seller’s offers are subject to change without notice. Delivery agreements are only effective if they are confirmed in writing by the Seller.
2.2. The agreed price is the price valid on the day of delivery plus the taxes to be clearly depicted in the invoices. Price lists handed over are the subject of the contract insofar as they do not conflict with the General Terms and Conditions of Sale and Delivery and/or separate agreements.
2.3. The information provided by the Seller in the sales documents or with the offer – e.g. descriptions or illustrations – serves only to describe the material and is only an approximation unless expressly designated as binding in writing.
3. Duties of the Customer
3.1. If the Customer does not accept the delivery, the Seller is entitled to withdraw from the contract after setting a grace period of four weeks or to claim damages for non-performance. In the latter case, the Seller is entitled to demand either 10% of the purchase price without proof of damage or compensation for the damage actually incurred. The costs of a second or further delivery shall be borne by the Customer.
4.1. The invoice amounts are to be paid in accordance with the conditions of the Seller on the order confirmation or invoice. Invoices are payable net within 14 days of the invoice date. Payment periods stated on the order confirmation and/or invoice shall commence on the invoice date. In the event that payment deadlines are exceeded, the Customer shall be in default without reminder; the Seller shall be entitled to demand interest at a rate of 4% above the respective minimum bid rate for main refinancing transactions of the European Central Bank, but at least at a rate of 6%. Default interest is due immediately.
Alternatively, the Customer can grant the Seller a SEPA company mandate. The direct debit shall be collected net 14 days after the invoice date. The period for pre-notification will be reduced to 5 days. The Customer assures to provide for the cover of the account. Costs incurred as a result of non-redemption or reversal of the direct debit shall be borne by the Customer as long as the non-redemption or reversal was not caused by the Seller. The Customer may only off-set such claims which are undisputed or have been legally established. The retention of the purchase sum and deductions of any kind are not permitted.
4.2. Regardless of the agreed method of payment, a payment or provision of security may be demanded at any time, even before the delivery has taken place, if justified doubts arise after conclusion of the contract regarding the solvency or creditworthiness of the Customer, or agreed terms of payment and delivery in essential points are not complied with or significant changes occur to the business circumstances of the Customer. In this case, the Seller shall also be entitled at any time to withdraw in whole or in part from all current contracts with the Customer or to demand reimbursement of his expenses or damages from the Customer for non-performance.
4.3. Bills of exchange and cheques shall only be accepted on account of performance and free of costs and expenses. The Seller only accepts bills of exchange by agreement.
5.1. The choice of transport route shall be made in writing by agreement between the Seller and the Customer. The ICC Incoterms shall apply.
5.2. The agreed delivery period begins with the dispatch of the order confirmation, but not before the provision of any documents, approvals and releases to be procured by the Customer. If an agreed delivery date is exceeded by more than four weeks, the Customer shall be entitled to set the Seller a grace period of one month. If the delivery obligation is not fulfilled by the end of the grace period, the Customer has the right to withdraw from the contract. Withdrawal must be declared in writing, immediately after expiry of the period of grace set, at the latest within two weeks of expiry of this period. A right of withdrawal does not exist if the Seller is unable to comply with the grace period through no fault of his own. In this case, the Customer may withdraw from the contract three months after the original delivery date has been exceeded. Events for which the Seller is not responsible and which make the delivery or its transport impossible or unreasonably difficult shall entitle the Seller to withdraw from the contract or to postpone the delivery until the obstacle has been removed. These circumstances are to be communicated by the Seller to the Customer without delay. Partial deliveries which have already taken place shall be considered as an independent transaction. The regulation of the partial delivery may not be refused due to the quantities still outstanding. In the event that the delivery is postponed for the aforementioned reasons, the Customer shall not be entitled to set a grace period or to withdraw from the contract. Claims for damages due to withdrawal are excluded. In case of at least grossly negligent delayed delivery/partial delivery, or in case of non-delivery/partial non-delivery, the claim for damages shall be limited to the foreseeable damage. Claims for damages are also excluded.
6. Passing of risk
The transfer of risk shall be determined in accordance with the specified Incoterms, and agreed in writing. If the handover or dispatch is delayed for reasons for which the Customer is responsible when collecting the goods, the risk shall pass to the Customer on the day of notification that the delivery item is ready for dispatch. The Customer also bears the risk for all returned deliveries during the return transport, as well as for packaging during the outward and return transport.
7.1 Recognisable defects must be notified to the Seller immediately, but at the latest within 8 days of receipt of the delivery at the place of destination. If samples have been taken from the Seller, these shall be decisive for the assessment of the delivery. Warranty claims cannot be asserted for processed deliveries,
or after reshipment. In the event of a defect, the Customer shall – unless otherwise agreed – at the Seller’s discretion demand improvement or subsequent delivery of the delivery complained about. If the improvement or subsequent delivery does not lead to a remedy of the defects, the Customer shall be entitled to a reduction or rescission. The agreed liability for defects shall apply to all deliveries within the scope of remedying defects.
Further claims for direct or indirect damages resulting from positive breach of contract, from breach of duties during contract negotiations and from tort are excluded. Claims due to the absence of warranted characteristics or from warranty promises can only be asserted if the warranted characteristics or warranty promises have been confirmed in writing by the Seller.
7.2. If the carrier accepts the goods without complaint, any liability of the Seller for improper packaging or loading shall be excluded.
7.3. As far as an EAN coding is used, the Seller will pay attention to readability. A liability on the part of the Seller, however, can not be assumed.
8. Retention of title
The delivery shall remain the property of the Seller until all outstanding claims arising from the joint business relationship, including interest and costs, have been settled in full or until the cheques given for this purpose have been cashed in full. The Seller is entitled to assert the retention of title by simple declaration. The retention of title also extends to the resold delivery. The Customer is revocably entitled to sell the delivery within the framework of a proper course of business. Any other disposal, in particular pledging, transfer by way of security or transfer in exchange is not permitted. The Seller must be notified immediately of any seizure by third parties – even after mixing or processing – as well as any other impairment of the rights to the delivery owned by the Seller. The Customer hereby assigns to the Seller, irrespective of any processing, all claims and ancillary rights to which he is entitled from the resale and the business relationship with his customers in connection with the resale and at the same time enters this assignment in his books. The Customer is revocably authorised to collect the claim from the resale. The authorisation to collect and the right to process shall also lapse without express revocation if the Customer ceases payments, in the case of Clause 4.2 and application for insolvency, protest of a bill of exchange or seizure. Any assigned accounts receivable settled thereafter shall be collected immediately on a special account with the designation to be indicated separately by the Seller. At the Seller’s request, the Customer shall immediately inform the Seller in writing of the debtors of the assigned claim and submit the assignment to the debtor. If the Customer is in default with his payment obligation towards the Seller or if he violates one of the obligations resulting from the agreed retention of title, the entire remaining debt shall become due immediately. In these cases, the Seller is entitled to demand the surrender of the delivery. The Seller is entitled to inform the Customer’s customers of the assignment of the Customer’s claim to the seller and to collect the claim. Any return of goods shall always only take place as security; this shall not constitute a withdrawal from the contract, even if partial payment is subsequently permitted.
9. Rental packaging / pallets
9.1. The Seller is ready to deliver goods on Euro-Pool pallets of 800 x 1200 mm size. The delivery takes place in exchange or via the settlement of a pallet account. Damaged pallets will not be accepted and the repacking will be charged at a flat rate of 50 Euro / pallet. Damaged pallets will not be exchanged and will not be reimbursed. If half or quarter Euro display pallets are used, these are CHEP pallets which remain with the consignee and are collected by CHEP.
10. Final provisions
10.1. If individual provisions of these terms and conditions of sale and delivery, or the delivery transaction are or become invalid, the validity of the remaining provisions shall not be affected thereby. The contracting parties shall be obliged to agree on a new provision which comes as close as possible to the purpose pursued by the invalid provision.
10.2. The place of performance for mutual obligations arising from the contractual relationship is Egelsbach, district of Offenbach am Main.
10.3. If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising shall be the courts locally authorised for Egelsbach, district of Offenbach. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
10.4. Further details are set out in the “Framework Agreement for the Supply of Finished Products”. This agreement is part of the general terms and conditions.