Terms and conditions of delivery and payment

Stand: Februar 2020

§ 1 General

1. These terms and conditions of delivery and payment shall be an integral part of all offers and contracts regarding our deliveries and services, including any advising, including in current and future business relations, without need for special reference to them.

2. Other terms and conditions of the buyer are only binding if agreed in writing. References by the buyer to the buyer’s terms and conditions are hereby expressly rejected. The written form is valid for agreements.

3. When using Incoterms, the current version applies.

4. Our offers are regarded as an open call for the conclusion of a contract. A purchase contract only comes about with our order confirmation (acceptance).

5. The buyer may only assign claims from the purchase contract with our prior written consent.

6. For the delivery of a product in the buyer’s own design (buyer’s own brand), the additional terms and conditions according to the private label agreement.

§ 2 Prices

The conditions and price lists applicable at the time of the order are decisive.

1. Sales prices are only valid if confirmed in writing as fixed prices. The prices are free on truck, ex-works (EXW) plus the statutory value-added tax applicable at the time of delivery unless other terms of delivery are expressly agreed.

§ 3 Packing / Transport

The goods are delivered in lot sizes according to the order confirmation in commercial sales packag-ing. If the buyer desires personalised sales packaging, we will order this according to the submitted documents in accordance with additional terms and conditions and with reimbursement of costs.

1. For transport, we pack the goods on standard pallets. Transport packaging that deviates from the standard is only provided at the buyer’s special request and with an invoice. Loose goods are only loaded in suitable and flushed, dry vehicles. In case of contamination, the freight carrier is requested to undertake cleaning. Only upon presentation of the certificate issued by a cleaning company shall we start loading. Any delays and costs arising from inappropriate vehicles shall be borne by the buyer, including for freight forwarders commissioned by us for the buyer. The same applies when transport-ing goods on standard pallets.

2. The return of transport packaging is excluded.

§ 4 Transfer of risk / delivery

1. If we dispatch the goods sold at the request of the buyer, the risk of accidental loss or accidental deterioration shall pass to the buyer as soon as we deliver the goods to the freight forwarder, freight carrier or other person commissioned with dispatch of the goods.

2. Delivery times are only valid as dates if they are expressly confirmed as such. They are calculated from the date of receipt of our order confirmation and clarification of the facts necessary for the execution of the order and are understood as being from the point of delivery.

3. The non-compliance with delivery dates and deadlines by us shall entitle the buyer to assert the rights to which it is entitled only after an appropriate period of grace which is at least 15 working days, unless this deadline is legally dispensable.

4. If we are prevented from performance by unforeseen circumstances that could not be avoided despite reasonable diligence, the deadline shall be extended by the duration of the hindrance. This also applies in the event of labour disputes, disturbances in the company’s own operations, disturbances in the operational sequence of the subcontractors (insofar as a replacement procurement is not to be expected) including the transport company, interference by public measures, and disturbances of the traffic routes.

5. We are entitled to deliver partial deliveries insofar as this does not disadvantage the buyer unreason-ably.

6. If the buyer does not accept the goods, partial deliveries or deliveries even after prior reasonable specification of deadlines, we are entitled to claim 20% of the order sum and the actual transport and/or storage costs as damages; Without the possibility of another utilisation, we are also entitled to the full order sum plus transport and/or storage costs. The buyer is free to prove that no or less damage has occurred.

7. The buyer’s rights to withdraw from the contract due to a deterioration in our assets after conclusion of the contract are excluded.

§ 5 Payment

1. An invoice is created for each delivery. This also applies to partial deliveries.

2. The invoice amount is payable immediately, but no later than 30 days after the invoice date. When this deadline expires, payment is considered in default. If a payment target is agreed, the buyer is in default if it does not make the payment on the date determined on a calendar-specific basis by the contract.

3. Accounting regulations by check or bill of exchange are paid as settlement and require our approval; Discount, exchange charges and costs are borne by the buyer.

4. Even in the case of a divergent stipulation on the part of the buyer, the amounts paid shall be initially applied to the least secured and, in the event of equal security, to the oldest claim.

5. In the event of a justified complaint of a defective product, the buyer may only withhold the portion of the purchase price which corresponds to the invoice amount for the defective part of the delivery.

6. In the event of default of payment, default interest, check or bill of exchange or other material deterioration of assets of the buyer after the conclusion of the contract, we are entitled to carry out further deliveries only with prepayment, to immediately require payment of all outstanding invoice amounts, and to demand cash payment or security deposits.

7. In the event of default of payment, we are entitled to charge interest on arrears according to German law (8% above base rate).

8. For the second and each additional reminder, we shall charge a fee of 8 euro each. The cost of legal action shall be borne by the buyer.

9. The offsetting of counterclaims is only permissible with claims which have not been disputed or are legally established. The buyer is only entitled to retention rights with regard to the satisfaction of claims arising from the same contractual relationship and with a written notification of defects.

§ 6 Quality / Defect liability

1. The goods are subject to the requirements of the “Technical Information” in its respective valid version. The samples and sample deliveries are in principle not binding. Further assurances of the material properties require the written form. Deviations are also agreed on as far as they follow from the natural irregularity of the materials used. A restriction of usability according to storage duration, which is inherent in the nature of the quality of the goods, is not a defect.

1a) KRONE-GIPS provides information on material properties and parameters as part of quality management from the quality data collection (Technical Information). This is binding in the respective valid version; insofar as the quality requirements are determined by standards compliant delivery shall occur. Additional agreements on the material properties and qualities require the written form. Deviations are also agreed upon insofar as they arise from the natural irregularity of the material used and are not specified.

1b) The respective applicable quality documents shall be made available to the customer on request.

2. The suitability of the goods for the purpose intended by the buyer, in particular with regard to further processing, is not part of the quality of the goods, unless we agree to this with the customer.

3. Any liability for material defects will be extinguished in the event of changes to the goods which go beyond prior use and our instructions for use. The buyer shall only be in compliance with its obligation to inspect the goods according to §377 HGB if it takes two representative samples of at least 1000 g of the delivered goods. In the event of a quality deviation, one of the samples is to be made available at our request to a technical test laboratory known to us.

4. Obvious defects must be reported immediately after receiving the goods and at the latest after 3 days.

5. In the event of hidden defects, the purchaser/wholesaler complies with its obligation to securing documentation when a representative sample of at least 1000 g is submitted, specifying the product description, the delivery note number and batch number, and if processed, with a description of the processing conditions. The buyer is obligated to comply with its obligation to mitigate damage. In the event of a claim against the buyer, Hilliges shall be informed immediately. The buyer may not recognise or regulate claims of more than 500 euro without the consent of Hilliges. The damage check on site can be carried out by Hilliges or an expert.

6. Within the scope of the subsequent performance claim, we may, at our option, rectify or return the defective goods or have them destroyed within 10 days after the goods have been returned.

7. Warranty claims lapse according to the statutory provisions. The lapse of the warranty claims shall be regarded as hindered for the duration of the rectification or subsequent delivery.

8. In the event of unfounded claims for which the buyer is responsible, or no defects or warranty claims exist, the buyer shall reimburse us for the resulting costs.

9. The buyer is entitled to a lump sum of 5% of the sale price plus any reimbursed prices as a claim for reimbursement in accordance with §478 para. 2 sent. 1 BGB in the event of resale of defective goods to consumers without they buyer’s knowledge of the defect upon proof of the defect and of the goods inspections; proof of higher or lower expenses is reserved.

§ 7 Retention of title

1. We reserve the title to the delivered goods until full payment of all claims resulting from the business relationship.

2. If, in connection with the purchase price payment, a temporary liability is established at our expense, the retention of title does not lapse before the payment.

3. In case of default of payment of the buyer, we are entitled to the withdrawal of the reserved goods and may enter the business premises of the buyer during usual business hours for this purpose. The withdrawal from the contract (§ 449 para. 2 BGB) shall be considered as declared if we demand return of the goods delivered under retention of title.

4. The buyer is prohibited from pledging the reserved goods or offering them for security. In addition, the buyer must immediately notify us if third parties wish to access the reserved goods. The buyer has to provide us all the necessary documents (in particular the seizure report). The buyer shall be liable to us for all damages resulting from such access, in particular for all court and extrajudicial costs.

5. The buyer is entitled to connect or process the reserved goods within the framework of normal business transactions with goods of third parties. We acquire co-ownership of the new goods in the amount of the value of the reserved goods.

6. As long as the buyer is not in default, it is entitled to the resale/further processing in performance of work regarding the reserved goods delivered by us and assigns to us all claims (including VAT) arising from its contractual relationship to its client or third parties. The same applies to newly manufactured goods in the amount of our co-ownership share.

7.The buyer remains entitled to make claims, but our power to collect the claim itself remains unaffected (a further disposal of the assigned claim - even only partially - is not permitted). However, we will not make use of our collection authority as long as the buyer does not violate the contract.

8. In the event of a breach of contract, the buyer shall be obliged to provide us with the information required for the claim, to provide documentation and to provide notification of the successful assignment.

9. If the reserved goods are utilised, we will calculate the costs and interest accrued from the proceeds and undertake settlement with the purchase price. A surplus shall be paid to the buyer. This applies to the same extent for the claims we have received.

10. The right to resell, use or install the reserved goods and the authorisation to collect assigned receivables expires with suspension of payment or application for or opening of insolvency proceed-ings; In the event of a check or bill of exchange, the collection authorisation also expires.

11. To the extent that the value of the security exceeds our claims by more than 20%, we shall release the additional security at the buyer’s request.

§ 8 Liability

1.For slightly negligent damage caused by faulty products, with the exception of damage to the physical body, we limit the liability to the amount of the liability and the reasons for liability stipulated by our product liability insurance. Insofar as the faulty products lead to a recall, the liability for the resulting costs is limited to a lump sum of 5% of the sale price plus any reimbursed prices as a claim for reimbursement; the right to demonstrate higher or lower costs is reserved. There is, however, only a cost-reimbursement of these costs if we have been informed about the recall and have been given the opportunity to cooperate within a reasonable period of time.

2. In the event of default, we shall be liable for 0.5% of the contract value per week, but not more than 50%. Furthermore, compensation claims are limited to the replacement of proven additional costs (covering purchase based on three comparative offers).

3. In the event of other breaches of duty, we shall not be liable for slight negligence, except in the event of damage to the physical body.

§ 9 Imitation / Copying

The buyer is obligated not to imitate or copy or distribute products from the delivery programme or to have the same done on its behalf. In the event of infringement, we are entitled to a contractual penalty. The amount of the claim for each imitated product is 100% of our price for the corresponding article; the price list applicable at the time of the infringement is decisive. This shall not affect our right to compensation for damages.

§ 10 Place of performance and jurisdiction

Osterode am Harz is agreed as the place of performance and court of jurisdiction. We are entitled, at our option, also to use the general court of jurisdiction of the buyer.

§ 11 Foreign transactions

The following also applies for foreign transactions:

1. All transactions, including check and exchange transactions, are subject to German civil and commercial law.

2. We can require advance payment or letter of credit. Unless otherwise agreed, the delivery is charged against documents (CAD) and in euro.

3. The buyer bears costs, fees, duties and any taxes resulting from the execution of the purchase contracts and deliveries, with the exception of taxes which are to be borne by us in Germany.

4. We are also entitled to pursue legal action against the buyer in its home country. If the competent court there declines the applicability of German law, the contractual relationship is subject to the provisions of the United Nations Convention on Contracts for the International Sale of Goods, taking into account the agreements made in these general terms and conditions.

§ 12 Validity of the provisions

In the case of the invalidity of individual conditions, the validity of the remaining provisions shall remain unaffected.