Terms and Conditions of Sale and Delivery of Zellaerosol GmbH, 79669 Zell i. W.
1. Scope and Differing Terms and Conditions:
a) Unless differing terms or conditions have been agreed upon in writing, solely the following terms and conditions are valid for all present and future deliveries and services (subsequently jointly referred to as “Deliveries”).
b) These terms and conditions apply only to companies in the sense of § 14 BGB (Section 14 German Civil Code), bodies corporate organized under public law and public-law special investment funds.
c) Deviating, conflicting or amendatory general terms and conditions of the Customer shall only become an integral part of the contract if we have expressly approved their applicability. This approval re- quirement shall apply in any case, even if, for instance, being aware of the terms and conditions of the Customer, we deliver to the Customer without any reservation.
2. Offers / Orders:
Our offers are not binding. Unless the Customer’s order contains other details, the Customer is bound to its order for 14 days after receipt of the order by us. Contracts become legally binding only upon our written order confirmation or by means of our delivery. Confirmation by fax or e-mail also fulfills the condition that the confirmation shall be in writing.
3. Transfer of Risk / Delivery / Obligation to Accept:
a) Unless there is a special agreement, risk is transferred to the Customer according to FCA (Incoterms 2010®) our premises in Zell i. W. Should shipping be delayed for reasons beyond our control, risk is transferred to the Customer as soon as we have notified the Customer that the goods are ready to ship. This condition also applies to partial deliveries or in those exceptional cases in which we also provide other services such as assuming shipping costs or delivering the goods.
b) The extent of the Delivery will be determined by the order and the order confirmation. Excess or short deliveries of up to +/- 10% are customary and must be accepted by the Customer without a specific written agreement.
c) The Customer shall be obliged to purchase all quantities ordered or released for material procurement or production.
d) Partial deliveries in appropriate amounts are allowed as long as they are reasonable for the Customer.
4. Prices and Shipping:
a) Prices are according to FCA (Incoterms 2010®) our premises in Zell i. W., net in Euro, and do not include the applicable sales tax.
b) In orders with delivery periods of more than 2 months, in annual contracts or other frame contracts or price agreements with terms of more than two months, we shall, using equitable discretion, corre- spondingly increase or decrease the agreed prices promptly if there are significant changes in payroll, material, energy, or raw material expenses after the conclusion of the contract and if we are not re- sponsible for these changes. In case of a price increase, this will not exceed 10%.
c) The collection of finished goods by the Customer or the shipment order to us shall be effected within 3 days after the Customer has been notified that the goods are ready for shipment. After this period of time, we shall be entitled to bill the Customer for the goods and for reasonable storage costs.
5. Payment / Interest on Late Payments:
a) Without a written agreement to the contrary, invoices are due immediately after receipt and must be paid net without any deductions. The timeliness of the payment is determined by the date of the irrev- ocable deposit of the payment to our account.
b) Should payment not arrive within 10 days after the receipt of the invoice, we will charge interest on late payment of 9 percentage points above the currently valid base interest rate. Furthermore, we will charge the Customer, in this case, a lump sum of 40.- € for the delay according to Sec. 288, para- graph 5 of the German Civil Code.
6. Retention of Title:
a) We retain title to the delivered goods until all payments have been received and all checks and bills of exchange accepted as part of the business relationship with the Customer have been irrevocably credited to our account. Should an open account relationship exist, retention of title applies to the acknowledged balance.
b) Goods delivered subject to retention of title (Conditional Goods) shall be handled with care and kept in good condition by the Customer. In particular, the Customer shall insure them against loss and damage adequately for their market value at Customer’s own expense. The insurance policy as well as proof of the payment of premiums shall be presented to us upon request. The Customer cedes to us already now any claims arising from the insurance policies subject to the condition subsequent that the Customer assumes title to the goods.
c) Treatment and processing of the Conditional Goods by the Customer shall always be carried out on our behalf without creating any liability on our part. Should the Conditional Goods be mixed or com- bined with other materials, we acquire joint ownership in the new goods in the proportion of the net invoiced value of the Conditional Goods to that of the other materials. The resulting new goods are to be considered Conditional Goods in the sense of this Item 6.
d) The Customer may sell the Conditional Goods or the new goods in the course of normal business transactions. However, the Customer assigns to us in full and in advance all claims accruing to the Customer from resale or reuse.
e) As long as the Customer meets its payment obligations from collected proceeds, the Customer shall be entitled to collect the claims assigned to us.
f) Should the Customer no longer meet its payment obligations to us, we may revoke our permission to resell or reuse the Conditional Goods and demand that the Customer inform us about assignments of claims and the corresponding debtors, give us all information necessary for the collection of the claims, surrender the relevant documents, and inform its debtors about the assignment. Reposses- sion of the Conditional Goods does not constitute a withdrawal from the contract. Should we withdraw from the contract, we have the right to sell the goods on the open market.
g) The Customer shall notify us in text form without delay of any third-party actions against the Condi- tional Goods. To the extent that the Customer cannot recover expenses resulting from the defense against such an action from the third party, it must bear these expenses.
h) Should the value of collateral exceed our claims by more than 10%, and should the Customer so request, we will release collateral of our choice to this extent.
i) To the extent that retention of title should not be valid according to the laws of the country in which the delivered goods are situated, the Customer shall, at our request, provide collateral of equal value. Should the Customer not comply with this request, we may, without regard to any agreed due dates of payment, demand the immediate payment of all open invoices.
7. Delivery Period / Reservation of Punctual and Correct Supply / Force majeure:
a) The delivery period shall be individually agreed or stated by us upon the acceptance of the order. If this is not the case, the delivery period shall usually amount to 8 to 16 weeks after the conclusion of the contract.
b) The delivery period begins with the receipt of the order confirmation, but not before full clarification of all details concerning the execution and fulfillment of the order, as well as of technical questions, and not before the receipt of any possibly agreed partial payment or payment security.
c) The delivery deadline has been met if the goods have been loaded onto the conveyance provided by the Customer on or before this deadline. Should shipment be delayed for reasons beyond our control, the delivery deadline has been met when we inform the Customer that the goods are ready to be shipped.
d) The occurrence of our delay in delivery shall be determined by legal provisions. However, a reminder by the Customer shall be required in any case. If we delay Delivery, the Customer can demand a lump-sum compensation of the Customer’s damage due to the delay. The lump sum for the delay amounts to 0.5% of the net price (Delivery Value) for every completed calendar week of the delay, however, maximum 5% of the Delivery Value of the goods delivered in delay. We reserve the right of proving that the Customer did not suffer any damage or only a considerably lower damage than the lump sum stated above. Claims for damages instead of performance according to Item 10 b) shall not be affected by this. The Customer shall inform us about contractual penalties which the Customer has agreed with its customer no later than at the time at which the contract is concluded.
e) Our obligation to supply is subject to the reservation that we ourselves are punctually and correctly supplied by our own suppliers (in particular with primary material). Should we ourselves not be cor- rectly or punctually supplied by our suppliers, we are entitled to withdraw from the contract; claims for damages against us are excluded. The above provision does not apply if 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 agreed delivery period for the length of the disturbance and its effects. This shall also apply, if the above events occur at our suppliers’ or during an existing delay. If the impairment is not only temporary, both partners have the right to withdraw from the contract. Should these conditions make delivery or performance impossible or unreasonable, we are no longer obligated to deliver. In any case, any claim for damages is excluded.
g) If the Customer is not able to provide the materials or services we need for the proper production of the order on time, the Customer must inform us thereof at least 10 days before the planned produc- tion date. 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 on the corresponding safety information sheets. Should there be any uncertainty, use or storage must be delayed until a qualified person has been consulted. In internal relationship, claims against us due to use or storage which is improper or not in compliance with applicable regula- tions by the Customer are excluded.
a) Our product descriptions do not constitute guarantees.
b) Unless there are 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 Provided 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. We are entitled, but not obliged without any special agreement, to check the Provided Goods for defects or their suitability for the production pur- pose. The same shall apply correspondingly if we are obliged to call off 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 provided to us by the Customer, no complaint shall be filed. Such loss is common within the industry and shall be borne by the 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 or health, have violated our obliga- tions deliberately or with gross negligence, have maliciously concealed defects or have assumed a guarantee extending this period or a longer period is compulsively required by law.
g) In case of 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 re- duction in price or, should there be significant defects, withdraw from the contract. Should the sup- plementary performance fail, the Customer may also demand damages instead of performance in accordance with Item 10b).
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 if these rights exist in the Federal Republic of Germany.
a) We fill according to the specifications agreed 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 nei- ther apply to the injury of life, body or health nor the assumption of a contractual guarantee, nor viola- tion of important contractual obligations. Important contractual obligations are those obligations, the fulfillment of which makes the proper execution of the contract possible in the first place, in the adher- ence 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 the damage typical for the contract and foreseeable. Claims arising from product liability law are not affected.
c) To the extent the Customer determines or provides labels and/or texts to be written, it shall be liable for the content and appearance of these texts, in particular warning texts, declarations of filling quanti- ties, assurances of properties, etc. For goods delivered in neutral packaging, the Customer shall be liable to the end user for all damages due to the deficient declaration of its products.
d) For the completely or partly rendered performance of the Customer for the implementation of the production in commission orders, e.g. the provision of formulations, raw materials and packaging ma- terials, transport regulations etc. or their suitable specifications, the Customer shall be exclusively liable to us in internal relationship. The Customer shall be responsible that its scope of performance has been sufficiently investigated and tested by means of long-term studies and that formulations and packaging materials have been shown to be chemically and physically suitable for their intended purpose.
e) Release from Claims: If a third party lodges a claim against us because of product liability, the Customer shall hold us harm- less 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 to us or (2) delivered on the basis of call-off contracts be- tween the Customer and another supplier or (3) purchased by us on the basis of Customer specifica- tions.
11. Additional Expenses:
The Customer will be billed for expenses necessary for production (e.g., lithographs, printing blocks, films, and special tools).
In case of well-founded doubts as to the Customer‘s ability to pay, e.g., due to depressed payments, delay in payment or bill or check protest, we may require collateral, cash in advance or cash payment for contemporaneous performance. If the Customer does not fulfill this demand within an appropriate time limit, we may withdraw from the uncompleted part of the contract. The insolvency shall only con- stitute justified doubt in the solvency of the Customer in the sense of this Item 12, if the insolvency proceedings have been rejected for insufficiency of assets.
13. Assignment of Claims:
If nothing to the contrary has been agreed and we still have outstanding claims against the Customer, the Customer commits itself to assign any claims against insurance companies and 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, Applicable Law:
a) The place of fulfillment for any performance arising from delivery contracts is our place of business.
b) If the Customer is a businessperson in the sense of the German Civil Code, a body corporate orga- nized under public law or a public-law special investment fund, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business. However, we also have the right to sue at the Customer’s place of business.
c) German law applies. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall be excluded.