as of: June 2020

 

I. General

The following Terms of Delivery and Payment apply to all contracts regarding deliveries by SystemKosmetik Produktionsgesellschaft für kosmetische Erzeugnisse mbH (hereinafter: Supplier) to an entrepreneur (hereinafter: Purchaser), unless they are amended or excluded with the express written consent of the Supplier. Deviating General Terms and Conditions of the Purchaser or third parties only apply insofar as the Supplier has expressly consented to them in writing. If the Supplier refers to a letter which contains or refers to the terms and conditions of the Purchaser or a third party, this does not indicate express consent to the applicability of those terms and conditions. These present General Terms and Conditions also apply to all future deliveries, services or offers to the Purchaser, even if they are not separately agreed again.

 

II. Offer and Scope of Delivery

1. Offers of the Supplier are always non-binding. The documents included in the offer, such as sketches, drafts, sample sets, samples, weight and dimensional specifications are only approximately applicable unless they are expressly designated as binding. Services and operating costs are stated as average values.
2. The Supplier reserves the rights of ownership and copyright to documents included in the offer, such as sketches, drafts, sample sets, samples, cost estimates, drawings and other documents; they shall not be made accessible to third parties.
3. The Supplier is bound to his offer for six weeks.
4. The Purchaser is bound to the order for no longer than two weeks. The purchase contract is concluded when the Supplier has confirmed in writing the acceptance of the order of the specified object of purchase within this period or the delivery has been carried out. However, the Supplier is obliged to give immediate notification in writing of any rejection of the order.
5. All agreements made between the Supplier and the Purchaser shall be set out in writing in the respective delivery contract. This also applies to side agreements, assurances and subsequent contract amendments.
6. The right of the Supplier shall be reserved to make production changes within the scope of the technical further development of the delivery object to the extent that the delivery object has not been changed substantially and the changes are reasonable for the Purchaser.
7. If prior to the execution of the order, preliminary work is carried out at the request of the Purchaser, such as samples, test sets, product developments, these will be expressly charged if this has been agreed. In the event that the order is placed, these services will not be charged again.
8. Development costs and testing fees, which are necessary for the execution of the placed order, may be charged separately by the Supplier.
9. Should the Purchaser demand the use of certain ingredients which he determines, these will only be checked for marketing authorization, suitability, quality and legal marketability by the Supplier after separate agreement.
10. Legally mandatory analyses of the ingredients and substances used as well as any proofs of effect and evaluations are to be commissioned separately.
11. If an order is not executed for reasons for which the Supplier is not responsible, the expenses incurred shall nonetheless be borne by the Purchaser. This applies in particular if the order was cancelled during execution pursuant to section 649 of the German Civil Code (BGB), if applicable, without any circumstance causing cancellation for which the Supplier is responsible. In principle, a lump-sum cancellation fee of 5 % of the order volume is due, unless the Purchaser can prove that the Supplier has not suffered any damage or that the damage suffered was significantly lower.
12. If goods are delivered successively at the request of the Purchaser, the Supplier may invoice the Purchaser separately for the warehouse costs incurred and costs of insurance taken out to protect the goods.
13. The Purchaser shall check order confirmations immediately and make any complaint within one week.

 

III. Price and Payment

1. In the absence of a separate agreement, the prices apply ex Supplier's warehouse or, in the case of shipment from the manufacturing plant, ex works, excluding packaging. Prices do not include value added tax. If the delivery is to be made more than four months after conclusion of the contract, the Supplier is entitled to adjust the prices accordingly in the event of price increases by his suppliers or unexpected increases in wage and transport costs. If the increase amounts to more than 5 % of the agreed price, the Purchaser is entitled to withdraw from the contract. The Supplier shall only be bound by the agreed price for the agreed delivery period – however, for at least four months. The Supplier may claim reimbursement from the Purchaser for additional expenses incurred by the Supplier as a result of the default of acceptance on the part of the Purchaser.
2. In the absence of a separate agreement, payment shall be made after delivery or provision and receipt of the invoice, less a 2 % discount, within eight days, strictly net within 30 days from the invoice date, free Supplier's paying agent. This shall not affect the rights of retention to which the Purchaser is entitled pursuant to section 320 of the German Civil Code (BGB). Discount promises only apply in the event that the Purchaser is not in arrears regarding payment of earlier deliveries.
3. The Supplier only accepts discountable and properly taxed bills of exchange on account of payment against payment of the bill and discount charges if this has been agreed. Credit notes for bills of exchange and cheques shall be issued subject to receipt less expenses, with value date of the day on which the Supplier can dispose of the equivalent value.
4. The Purchaser may not offset any counterclaims of the Purchaser which are disputed by the Supplier or which have not been legally established. The Purchaser may only assert a right of retention insofar as it relates to claims from the purchase contract. If a notice of defects is asserted, payments by the Purchaser may only be retained to the extent that they are in reasonable proportion to the defects that have occurred.
5. Payments may only be made to employees of the Supplier if they submit a valid authority for collection.
6. The Supplier is entitled to demand a down payment of up to 50 % of the purchase price.

 

 IV. Delivery Periods and Delay

1. Delivery periods and dates are only agreed if they have been expressly so designated by the Supplier. The delivery period commences with the conclusion of the contract, but not before any formulas, documents, approvals, releases to be procured by the Purchaser have been provided and not before receipt of an agreed down payment.
2. The correct and timely self-delivery is reserved by the Supplier.
3. The delivery period shall be extended appropriately in the event of measures within the framework of legal industrial disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles which lie outside the will of the Supplier or his agents, insofar as such obstacles demonstrably affect the delivery of the sold object. The same applies if the Supplier on his part is not supplied on time.
4. The Supplier is entitled to withdraw from the contract if the producer does not supply him. This does not apply, however, if the Supplier is responsible for the non-delivery (e.g. default of payment).
5. Compliance with the delivery period presupposes that the Purchaser has fulfilled his contractual obligation
6. If the Purchaser suffers damage due to a delay, the Supplier is liable under the statutory provisions.
7. The Supplier shall not be liable for delayed or impossible deliveries due to the fault of the pre-supplier, unless the delivery is delayed or does not occur due to the fault of the Supplier, his representative or his agent. In this case, the Supplier's obligation to pay damages is limited to the foreseeable damage typical for the contract. If, in order to fulfil his liability obligation, the Supplier assigns to the Purchaser his claims to which he is entitled against the pre-supplier and the Purchaser is unable to enforce these claims in full, the Supplier is obliged to indemnify the Purchaser.
8. The limitation of liability in No. 7 does not apply if a commercial transaction for delivery by a fixed date or an absolute fixed date has been agreed; the same applies if the Purchaser claims that his interest in the performance of the contract has ceased to exist due to the delay for which the Supplier is responsible.
9. The statutory provision of section 288 of the German Civil Code (BGB) applies to the interest on arrears.

 

V. Transfer of Risk and Transport

1. In the absence of a separate agreement, the dispatch route and means are left to the choice of the Supplier. The goods will only be insured at the request and expense of the Purchaser.
2. In the case of purchase to destination, the risk shall pass to the Purchaser when the goods are handed over to the forwarder or carrier, but at the latest when they leave the warehouse or, in the case of direct shipment ex works, when they leave the works. This also applies if partial deliveries are made or the Supplier has taken over further services.
3. If dispatch is delayed due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser on the day of readiness for dispatch. However, the Supplier is obliged, at the request and expense of the Purchaser, to take out the insurance policies which the Purchaser demands.
4. Delivered objects, even if they have minor defects, are to be accepted by the Purchaser without prejudice to the rights under Section VII (Notice of Defects and Liability for Defects).
5. Partial deliveries are permitted, as far as this is reasonable for the Purchaser.

 

VI. Retention of Ownership

1. The Supplier retains the right of ownership until all claims arising from the purchase contract with the Purchaser have been paid in full.
2. Any processing or transformation of the object of purchase by the Purchaser is always carried out for the Supplier. If the object of purchase is processed with other objects not belonging to the Supplier, the Supplier shall acquire co-ownership of the new object in the ratio of the value of the object of purchase to the other processed objects at the time of processing. If the object of purchase is mixed with other objects not belonging to the Supplier, he shall acquire co-ownership of the new object in the ratio of the value of the object of purchase to the other mixed objects at the time of mixing. If the Purchaser's item is to be regarded as the main item, the Purchaser shall transfer proportional co-ownership to the Supplier.
3. The Purchaser is obliged to treat the object of purchase with care, to secure it against interference by third parties and - if this is agreed in writing - to insure it immediately against fire "for third party account" and to provide proof of this on request; otherwise the Supplier is entitled to insure it himself at the Purchaser’s expense. The Purchaser undertakes to assign any claims for fire damage to the Supplier.
4. The Purchaser shall not pledge the object of purchase or assign it as security without the consent of the Supplier. The Purchaser is obliged to inform the Supplier immediately in writing in the event of seizure or other interventions by third parties, so that the Supplier can take legal action in accordance with section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse the Supplier for the court or out-of-court costs of an action pursuant to section 771 of ZPO, the Purchaser is obliged to compensate the Supplier for the costs.
5. The Purchaser is entitled to resell the goods in the ordinary course of business. He hereby assigns to the Supplier all claims in the amount of the final invoice amount (including value added tax) of the Supplier, which accrue to him from the resale against his customers or third parties, irrespective of whether the object of purchase has been resold without or after processing. The Purchaser is authorized to collect these claims even after assignment. The Supplier's right to collect the claims himself remains unaffected by this, but the Supplier undertakes not to collect the claims as long as the Purchaser duly meets his payment obligations. Otherwise, the Supplier can demand that the Purchaser informs him of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtor of the assignment.
6. If the conduct of the Purchaser is in breach of contract, in particular default of payment, the Supplier is entitled to take back the goods after a reminder and the Purchaser is obliged to surrender them. The taking back as well as the seizure of the goods by the Supplier shall only constitute a withdrawal from the contract if the Supplier expressly declares this in writing.
7. All costs of taking back and realizing the object of purchase shall be borne by the Purchaser. The costs of realization shall amount to 10 % of the realization proceeds including value added tax without proof. They are to be set higher or lower if the Supplier proves higher costs or the Purchaser proves lower costs. The proceeds shall be credited to the Purchaser after deduction of the costs and other claims of the Supplier in connection with the purchase contract.

 

VII. Notification of Defects and Liability for Defects

1. If the sold items are defective, the Supplier may, for the purpose of subsequent performance, choose to either remedy the defect or supply a defect-free item. The expenses necessary for the purpose of subsequent performance shall be borne by the Purchaser to the extent that they are increased by the fact that the item of the delivery is taken to a place other than the Purchaser's branch office, unless such transfer corresponds to its intended use.
2. In the event of failure of subsequent performance, the Purchaser is entitled to withdraw from the contract, deduct and claim damages in accordance with Section VIII of these General Terms of Delivery and Payment. As a rule, subsequent performance is deemed to have failed after the second unsuccessful attempt at subsequent performance.
3. The aforementioned defect rights do not apply in the event of only insignificant deviations of the purchased item from the contractually agreed quality or in the event of only insignificant impairment of usability.
4. Section 377 of the German Commercial Code (HGB) applies to the Purchaser’s obligation to give notice of defects.
5. The Purchaser's right of recourse against the Supplier only exists to the extent that the Purchaser has not made any agreements with his customers which go beyond the statutory claims for defects. Number 1 sentence 2 applies accordingly.

 

VIII. Compensation

1. The Supplier is liable for damages resulting from injury to life, body or health, which are based on a negligent or intentional breach of duty by the Supplier or an intentional or negligent breach of duty by a legal representative or his agents.
2. The Supplier is only liable for other damages if these are based on a grossly negligent or intentional breach of duty by the Supplier or an intentional or grossly negligent breach of duty by a legal representative or an agent of the Supplier.
3. The Supplier is liable for damages which are not based on injury to life, body or health, in principle only up to an amount which corresponds to three times the order value of the order.
4. The Supplier is liable exclusively for contract-typical and foreseeable damages.
5. The Supplier's liability for damages caused by improper modifications to the sold items by the Purchaser or by third parties commissioned by the Purchaser is excluded. Furthermore, the Supplier does not assume any liability for advertising statements of the Purchaser on packaging texts or other advertising media. If the Purchaser exports the items sold by the Supplier to countries other than the Federal Republic of Germany, the Purchaser shall himself ensure that the items sold are properly labelled and otherwise marketable in the export countries.
6. In the case of production of sold items according to the information provided by the Purchaser, the Purchaser is liable for the fact that he is entitled to all patent, utility model and/or other industrial property rights. In this respect, the Purchaser indemnifies the Supplier on first demand from all claims of third parties.

 

IX. Limitation of Claims

1. The limitation period for claims and rights due to defects of the goods - regardless of the legal basis - is one year. However, this shall not apply in cases of the entrepreneur's right of recourse according to section 479 para. 1 of the German Civil Code (BGB).
2. The limitation periods according to para. 1 also apply to all claims for damages against the Supplier in connection with the defect - irrespective of the legal basis of the claim. Insofar as claims for damages of any kind exist against the Supplier which are not connected with a defect, the limitation period of para. 1 sentence 1 applies to them.
3. The limitation periods under para. 1 and para. 2 apply with the following proviso:
   1. The limitation periods generally do not apply in case of intent.
   2. The limitation periods do not apply if the Supplier has fraudulently concealed the defect. If the Supplier has fraudulently concealed a defect, the statutory limitation periods which would apply in the absence of fraudulent intent shall apply instead of the periods specified in para. 1.
   3. Furthermore, the limitation periods do not apply to claims for damages in cases of injury to life, body or health or freedom, in the case of claims under the Product Liability Act, in the case of a grossly negligent breach of duty or in the case of a breach of fundamental contractual obligations.
4. The limitation period for all claims commences with the delivery.
5. For the suspension of the statute of limitations, section 203 of the German Civil Code (BGB) applies with the following proviso: Contract negotiations commence upon receipt of a letter in which one side asserts claims against the other. Contract negotiations are deemed terminated if one side does not respond in writing to a letter from the other side in this regard within four weeks of receipt of the letter.

 

X. Provision of Goods by the Purchaser or Third Parties

1. If raw materials, bulk goods or packaging materials are provided by the Purchaser or by a third party designated by the Purchaser, the Supplier does not assume any liability or warranty with regard to the chemical or physical reactions of the product and the stability, durability, effectiveness or compatibility of the finished product or the packaging material.
2. Incoming goods inspections for materials provided are only carried out if separately commissioned by the Purchaser and are invoiced separately by the Supplier.
3. Provided goods (including raw materials, bulk goods and packaging materials) will only be insured by the Supplier at the request and expense of the Purchaser.
4. Provided formulas are not checked for their marketability and suitability. A warranty and liability for the provided formulas is not assumed by the Supplier.

 

XI. Place of Performance, Applicable Law

1. Place of performance and exclusive place of jurisdiction for deliveries and payments as well as for all legal disputes arising between the parties is the headquarters of the Supplier.
2. The relations between the contracting parties are governed exclusively by the law applicable in the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

 

XII. Final Provisions

1. The rights arising from this contract shall not be assigned by either party to the contract without the express written consent of the other party.
2. If individual provisions of this contract should prove to be wholly or partially invalid, this shall not affect the validity of the remainder of the contract; the contracting parties undertake in this case to replace the wholly or partially invalid or unenforceable provision by a valid or enforceable provision which comes as close as possible to the economically intended purpose of the wholly or partially invalid or unenforceable provision within the framework of the overall contract.