e) Our obligation to supply is subject to the reservation that we ourselves are punctually and correctly supplied by our own suppliers. This reservation particularly applies to semi-finished goods or raw material. Should we ourselves not be correctly or punctually supplied by our suppliers, we are entitled to withdraw from the contract. In such cases, claims for damages against us are excluded. This provi- sion does not apply when we did not conclude a congruent covering transaction or we are ourselves responsible for the incorrect or delayed delivery by our suppliers.
f) Events that are neither foreseeable, avoidable, nor subject to our control (e.g., force majeure; stop- pages; legal industrial actions; difficulties in obtaining material or energy; transportation delays; short- ages of labor, energy, or raw materials; actions by administrative bodies; as well as difficulties in ob- taining authorizations (in particular import and export licenses) extend the agree-upon delivery period for the length of the disturbance and its effects. This extension of the delivery period also applies when the above events affect our suppliers or occur during an existing delay. Should the delay not be only temporarily, both partners have the right to withdraw from the contract. Should these conditions make delivery impossible or unreasonable, we are no longer obligated to deliver. In any case, any claim for damages is excluded.
g) Should the Customer not be able to punctually provide materials or services we need for proper production of the order, the Customer must inform us thereof at least 10 days before the planned production date. This notification is necessary in order to avoid expensive changes in production. The Customer must bear any resulting extra expenses.
8. Use of the Goods / Storage:
The products that we have filled must only be used and stored in compliance with the applicable regu- lations. Usage instructions and in particularly warnings printed on the packaging must be followed, as must be instructions in the corresponding safety information sheets. Should there be uncertainty, use or storage must be delayed until a qualified person has been consulted. Claims due to improper use or storage are excluded.
a) Our product descriptions do not constitute guarantees.
b) Should there be no agreements to the contrary, customary or slight, technically unavoidable deviations in quality, color, dimensions, or weight are not defects.
c) Defects in part of a Delivery do not give the Customer the right to reject the whole Delivery. We inspect the goods before shipping. We must be notified of apparent defects without delay, but no later than eight (8) days after receipt of the Delivery; of hidden defects within 5 days after discovery. Should these deadlines be exceeded, all claims and rights due to liability for defects for these defects expire. Notice must be in writing and accurately describe the type and extent of the defect.
d) As far as the Customer provides raw materials, packaging materials or formulations for the production (subsequently referred to as Proved Goods), the same shall be delivered to us free of any charges and with the pertaining specification documents. They shall be suitable for the intended purpose and shall be approved and shall meet the statutory provisions in terms of design and labelling. We are entitled, but not obliged without any special agreement, to check Provided Goods for defects or their suitability for the production purpose (e.g. inspection of incoming goods). The same shall apply corre- spondingly if we are obliged to call materials and raw materials from contracts between the Customer and any third party against charges.
e) For any loss due to shrinkage and rejects of up to 2 % for raw materials and packaging materials and up to 5% for labels, which were provided to us by the Customer for production, no complaint shall be filed. Such loss is common within the industry and shall be borne by Customer.
f) The period of limitation for warranty claims due to a deficiency is 12 months after transferal of risk unless we are liable for any damage due to the injury of life, body and health, have violated our obli- gations deliberately or with gross negligence, have maliciously concealed defects, have given a guar- antee extending beyond this period, or a longer period is required by law.
g) Should there be legitimate claims due to defects, we have the choice between delivering replacement items or repairing the goods. Should the supplementary performance fail, the Customer may demand a reduction in price or, should there be significant defects, withdraw from the contract. Should the supplementary performance fail, the Customer may also demand damages instead of performance in accordance with Subsection 10 b).
h) We do not bear supplementary performance expenses resulting from the goods having been moved to another location than the Customer‘s place of business.
i) Violation of third party industrial property rights is a defect only when these rights are valid in the Federal Republic of Germany.
a) We are required to fill the containers according to the specifications agreed upon with the Customer and the legal regulations.
b) Claims for damages of any sort against us are excluded when we, our lawful representatives, or our vicarious agents have caused the damage by ordinary negligence. This exclusion of liability does not apply to death, bodily injury, damage to health, assumption of a contractual guarantee, or violation of important contractual obligations. Important contractual obligations are those obligations, the fulfill- ment of which make the proper execution of the contract possible in the first place, in the adherence to which the Customer constantly trusts and may trust, and the breach of which endangers the achievement of the purpose of the contract. Should we assume a guarantee, our liability is however limited to the extent of the guarantee, or, by ordinarily negligent violation of important contractual obli- gations, to customary and foreseeable damages. Claims arising from product liability law are not af- fected.
c) To the extent that the Customer determines the wording of or provides a label and/or a text, it is liable for the content and appearance of these texts and/or text. This especially applies to warnings, decla- rations of amounts contained, assurances of properties, etc. For goods delivered in neutral packag- ing, the Customer is liable against the end user for all damages due to deficient declaration of its products.
d) Solely the Customer is liable to third parties for his services completely or partially performed in order to enable us to carry out the manufacturing operations, such as the provision of formulations, raw materials and packaging, transport regulations, etc., and their corresponding specifications. The Cus- tomer is responsible for ensuring that its supplies and services have been sufficiently investigated and tested by means of long-term studies and that formulations and packaging have been shown to be chemically and physically suitable for their intended purpose.
e) Release from Claims: Should claims be lodged against us due to product liability the Customer must hold us harmless from such claims if and to the extent that the damage was caused by a fault in material or raw materials (1) provided by the Customer or (2) delivered on the basis of a call-off contract between the Customer and another supplier or (3) purchased by us on the basis of Customer specifications.
11. Additional Expenses:
The Customer will be billed for expenses necessary for production (e.g., lithographs, printing blocks, films, and special tools).
Should there be well-founded doubts as to the Customer‘s ability to pay, e.g., due to depressed pay- ments, delay in payment, or bill or check protest, we may require collateral, cash in advance or cash payment for contemporaneous performance. Should the Customer not fulfill this demand within an appropriate time limit, we may withdraw from the uncompleted part of the contract. The insolvency of the customer shall only represent doubt in the solvency of the Customer which entitles to rescission in the sense of this Item 13, if the insolvency proceedings have been rejected for insufficiency of assets.
13. Assignment of Claims:
Should there be no differing agreement and we still have outstanding claims against the Customer, the Customer must assign any possible insurance claims and claims against third parties, e.g., due to damage to the goods, to us in writing within one week of our request.
14. Place of Fulfillment, Place of Jurisdiction, Choice of Law:
a) The place of fulfillment for all claims arising from delivery contracts is our place of business.
b) If the Customer is a trader in the sense of the German Commercial Code, a body corporate organized under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business. However, we also have the right to sue at the Customer’s place of business.
c) Solely German law applies. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 does not apply.