GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY (CONDITIONES GÈNÈRALES)
- Scope of application
The Seller’s deliveries are only made subject to the following terms and conditions of sale and delivery. Agreements or terms and conditions of the Purchaser deviating from these require the express written consent of the Seller to become effective, if they are in conflict with these terms and conditions. The Seller’s terms and conditions of sale and delivery become part of the contract at the latest upon acceptance of the delivery.
- The offers of the Seller are subject to change. Delivery agreements are only effective if they are confirmed in writing by the Seller.
- The price valid on the day of delivery plus the taxes disclosed in the invoices is deemed to be agreed. Any price lists provided form part of the contract insofar as they do not conflict with the general terms and conditions of sale and delivery and/or separate agreements.
- 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 approximately authoritative, unless it is expressly designated in writing as binding.
- Obligations of the Purchaser
- If the Purchaser 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 loss or compensation for the actual damage incurred. The costs of a second or further delivery are borne by the Purchaser.
- The delivered goods may only be resold unaltered in their original packaging.
4.1. Invoice amounts are payable in accordance with the Seller’s terms on the order confirmation or invoice. Invoices are payable net within 14 days from the date of invoice. Payment periods stated on the order confirmation and/or invoice commence on the invoice date. If payment deadlines are exceeded, the Purchaser will be in default without reminder; the Seller is entitled to charge interest at a rate of 4% above the minimum base rate for main refinancing operations of the European Central Bank applicable at the time, but at least 6%. Default interest is due immediately. Alternatively, the Purchaser may grant the seller a SEPA company mandate. The direct debit will be collected net 14 days after the invoice date. The period for pre-notification is reduced to 5 days. The Purchaser undertakes to ensure that the account holds sufficient funds. Costs incurred due to non-payment or chargeback of the direct debit are borne by the Purchaser, provided that the non-payment or chargeback was not caused by the Seller. The Purchaser may only offset claims that are undisputed or have been legally established. The retention of the purchase price and deductions of any kind are not permitted.
4.2. Irrespective of the agreed method of payment, payment or provision of security may be demanded at any time, even before delivery has been made, if, after conclusion of the contract, justified doubts arise as to the solvency or creditworthiness of the Purchaser, agreed terms of payment and delivery are not complied with in material respects or material changes occur in the circumstances of the Purchaser’s business. In this case, the Seller is also entitled to withdraw in whole or in part at any time from all current contracts with the Purchaser or to demand compensation from the Purchaser for its expenses or damages for non-performance. 4.3. Bills of exchange and cheques are only accepted on account of performance and free of costs and charges. The Seller accepts bills of exchange only by prior agreement.
4.4. Travelling sales people and van sellers are only entitled to collection upon presentation of a special ID.
5.1. In the absence of special instructions from the Purchaser, the Seller chooses the mode of carriage at its own discretion. Deliveries are made free domicile from € 600 net invoice value. If the Purchaser requests a delivery that deviates from the usual shipping method, such as express or courier, the associated additional costs are borne by the Purchaser. The goods travel at the risk of the Purchaser; insurance will be taken out at the request and expense of the Purchaser. After delivery has been made, the Purchaser acknowledges receipt of the goods to the Seller.
5.2. The agreed delivery period commences with the dispatch of the order confirmation, but not before the provision of any documents, approvals and releases to be procured by the Purchaser. If an agreed delivery date is exceeded by more than four weeks, the Purchaser is entitled to set the Seller a grace period of one month. If the delivery obligation is not fulfilled by the expiry of the grace period, the Purchaser has the right to withdraw from the contract. Withdrawal must be declared in writing, immediately after expiry of the grace period set, at the latest within two weeks after expiry of this period. There is no right to withdraw from the contract if the Seller is unable to meet the grace period through no fault of its own. In this case, the Purchaser 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 give the Seller the right to withdraw from the contract or to postpone the delivery until the obstacle has been removed. The Seller must inform the Purchaser of these circumstances without delay. Partial deliveries already made are deemed to be an independent transaction; settlement of the partial delivery may not be refused on account of the quantities still outstanding. In the event that delivery is postponed for the aforementioned reasons, the Purchaser has no right to set a grace period or to withdraw from the contract. Claims for damages due to withdrawal are excluded. In the event of delayed delivery/partial delivery caused at least by gross negligence or in the event of non-delivery/partial non-delivery, the claim for damages is limited to the foreseeable damage. Claims for damages are otherwise excluded.
- Transfer of risk
Unless otherwise agreed, the risk is transferred from the supplying plant or warehouse to the carrier or the Purchaser upon dispatch of the order. If the handover or dispatch is delayed at the time of collection for reasons for which the Purchaser is responsible, the risk is transferred to the Purchaser on the date of notification that the delivery item is ready for dispatch. The Purchaser also bears the risk for all returned deliveries during the return transport as well as for the packaging during the outward and return transport.
7.1 Recognisable defects must be reported to the Seller immediately, at the latest within 8 days after receipt of the delivery at the destination. If samples have been taken from the Seller, these are authoritative for the assessment of the delivery. Warranty claims cannot be asserted for processed deliveries or after onward shipment. If there is a defect, the Purchaser shall, unless otherwise agreed, be entitled to demand, at the Seller’s discretion, improvement or subsequent delivery of the defective order. If the improvement or subsequent delivery does not remedy the defects, the Purchaser shall be entitled to a reduction in price or rescission of the contract. The agreed liability for defects applies to all deliveries made within the scope of the rectification of defects. Further claims for indirect or direct damages from positive breach of contract, from the breach of duties during contractual negotiations and from tort are otherwise excluded. Claims based on the absence of warranted characteristics or on warranty promises can only be asserted if the warranted characteristics or warranty promises have been confirmed in writing by the Seller.
7.2. Acceptance by the carrier without objection discharges any liability on the part of the Seller for improper packing or loading.
7.3. If EAN coding is used, the Seller will take care to ensure that it is legible; however, the Seller cannot accept any liability.
- Retention of title
The delivery remains the property of the Seller until all outstanding claims from the joint business relationship, including interest and costs, have been settled in full or until the cheques given for this purpose have been honoured 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 Purchaser is revocably entitled to sell the goods in the ordinary course of business. Any other disposal, in particular pledging, transfer of ownership by way of security or transfer by way of exchange, is not permitted. The Seller must be notified immediately of any seizure by a third party, including after mixing or processing, and of any other impairment of the rights to the goods to which the Seller retains title. The Purchaser hereby assigns to the Seller, irrespective of any processing, all claims and ancillary rights to which it is entitled from the resale and the business relationship with its customers in connection with the resale and at the same time notes this assignment in its books. The Purchaser is revocably authorised to collect the claim from the resale. The collection authorisation and the right to process also expire without express revocation if the Purchaser ceases its payments, in the case of Clause 4.2 and the application for insolvency, a protested bill of exchange or if a seizure has taken place. Assigned accounts receivable received thereafter must be immediately deposited in a special account bearing the designation to be specified separately by the Seller. At the request of the Seller, the Purchaser must immediately notify the debtor of the assigned claim in writing and submit the assignment to the debtor. If the Purchaser defaults on its payment obligation to the Seller or breaches any of the obligations arising from the agreed retention of title, the entire remaining debt becomes due immediately. In these cases, the Seller is entitled to demand the return of the delivery. The Seller is entitled to notify the Purchaser’s customers of the assignment of the Purchaser’s claim to the Seller and to collect the claim. Any repossession of goods is always made only as a collateral measure; even if partial payment is subsequently permitted, this does not constitute a withdrawal from the contract.
- Returnable packaging / pallets
9.1. The Seller is prepared to deliver batches of goods on Euro-Pool pallets measuring 800 x 1200 mm. Pallets that are damaged but can be repaired are charged at repair cost, pallets that cannot be repaired or have been lost are charged at replacement value. Where half or quarter Euro display pallets are used, these are CHEP pallets which remain with the recipient of the goods and are collected by CHEP.
9.2. The return of packaging that is not expressly designated as returnable packaging in the invoices is governed by the provisions of the German Packaging Ordinance of 12 June 1991 and any supplementary agreements or regulations.
- Final clauses
10.1. If individual provisions of these terms and conditions of sale and delivery or of the delivery transaction are or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties are obliged to agree on a new provision that comes as close as possible to the purpose pursued by the void provision.
10.2. The place of performance for the mutual obligations arising from the contractual relationship is Egelsbach, district of Offenbach am Main.
10.3. If the Purchaser 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. German law under exclusion of UN sales law applies.