General Terms and Conditions (GTC)

I. Application of the conditions

Supplies, services, and offers of the supplier are made solely based on these terms and conditions. These therefore also apply to all future business relationships, even if they are not expressly agreed upon. These conditions shall be deemed to have been accepted at the latest upon receipt of the goods or services counter-confirmations by the purchaser with reference to his terms and conditions of purchase are hereby contradicted.

II. Offer and conclusion of contract

Offers of the supplier are without obligation, unless otherwise stated in the order confirmation. A contract is only concluded when the supplier confirms or executes the order in writing. Deviating agreements, declarations of acceptance by the purchaser and all orders require written or equivalent confirmation from the supplier for legal validity.

  1. Illustrations, colours, dimensions, and weights are only binding if expressly stated in writing shall be agreed.
  2. Samples are non-binding visual samples. In the case of a sample purchase, deviations which are customary in the industry, or which are within normal manufacturing tolerances are reserved. Characteristics of the samples shall only be considered as agreed characteristics of the object of purchase if this has been expressly agreed in writing.
  3. Samples must be returned to the supplier in perfect condition after 14 days at the latest. If the return is not made in time, the supplier is entitled to charge the purchaser the purchase price according to the respective valid price list.

III. Time limits for delivery, delay

  1. Compliance with agreed deadlines for deliveries presupposes compliance with the agreed payment terms by the purchaser. If these conditions are not fulfilled in time, the time limits shall be extended accordingly, except if the supplier is responsible for the delay.
  2. The delivery period shall be extended accordingly if the failure to meet the deadline is due to force majeure, e. g. mobilization, war, riot, production failures of suppliers due to natural disasters or similar events, e. g. strike or lockout. The supplier shall not be liable for the aforementioned circumstances, even if they arise during an already existing delay.
  3. Partial deliveries are permitted within the agreed delivery periods.
  4. Punctual and complete self-delivery of the supplier remains reserved.
  5. The Supplier shall only be in default if the performance is due, and an explicit written reminder has been issued unless a specific time has been agreed for the performance according to the calendar.
  6. In all cases of late delivery, even after the expiration of a grace period set by the customer, the customer's claims for compensation are limited to 10% of the value of the part of the delivery that could not be used in accordance with the contract due to the delay. This does not apply to mandatory liability in cases of intent or gross negligence or for injury to life, body, or health. This does not entail a change in the burden of proof to the detriment of the purchaser. The statutory right of withdrawal of the client remains unaffected.
  7. The purchaser may only withdraw from the contract within the scope of the statutory provisions if the supplier is responsible for the delay.
  8. The purchaser is obliged to declare within a reasonable period of time at the request of the supplier whether he withdraws from the contract, demands compensation instead of performance or maintains the contract.

IV. Scope of delivery

  1. The scope of delivery shall be determined by the supplier's written order confirmation.
  2. Order quantities deviating from the packaging units indicated in the valid price list shall be rounded up to the full packaging unit.
  3. Changes in shape or colour which are due to the improvement of the technology or to the requirements of the legislator remain reserved during the delivery period, provided that the delivery item is not substantially altered and the changes are reasonable for the purchaser.

V. Cancellation costs

If the purchaser withdraws from a given order without justification, the supplier may, without prejudice to the possibility of claiming higher actual damages, claim 5 % of the sale price for the charge for the processing of the order incurred costs and for lost profits. The purchaser reserves the right to prove that no damage has occurred or to a lesser extent.

VI. Packaging and shipping, small quantities

  1. The delivery shall be made by the supplier to the delivery address specified by the customer. The choice of shipping method is made at our best discretion. Deliveries abroad
  2. Shipping costs according to current price list.

VII. Framework and call orders, acceptance, and transfer of risk

  1. Frame and call orders oblige the purchaser to accept the total quantity underlying the respective order.
  2. Unless otherwise agreed in writing, the withdrawal of the agreed total quantity shall take place within 12 months after conclusion of the contract.
  3. If the Purchaser fails to meet the agreed delivery deadline, the Supplier shall be entitled to deliver and calculate the total quantity not yet delivered after the expiry of a grace period of four weeks. The extension of the deadline must be made in writing, the purchaser must be informed of the consequences of the failure to meet the deadline.
  4. The customer is obliged to accept the delivery item. If the purchaser is in arrears with the acceptance of the purchase object for more than fourteen days from receipt of the notice of availability, the supplier shall be entitled to withdraw from the contract and demand compensation instead of performance after a further fourteen days has been set. The setting of an extension period is not necessary if the purchaser seriously or definitively refuses acceptance or is manifestly unable to pay the purchase price even within this period.
  5. The risk passes to the purchaser upon acceptance of the delivery item. If the purchaser declares that he will not accept the delivery item, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the purchaser at the time of refusal.

VIII. Guarantee

  1. The supplier shall be liable for material defects as follows:
  2. All parts or services that show a material defect within the limitation period shall be repaired, re-delivered or re-delivered free of charge at the choice of the supplier, provided that the cause of the material defect already existed at the time of the transfer of risk.
  3. In the first place, the supplier shall always be given the opportunity for subsequent performance within a reasonable period of time. If this is refused, he is exempted from liability for material defects. If the subsequent performance fails, the purchaser may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
  4. Claims for material defects are time-barred in twelve months. The period begins with the transfer of risk. The above provisions do not apply if the law in accordance with § 479 para. 1 BGB (right of recourse) prescribes longer periods.
  5. The purchaser shall immediately complain in writing to the supplier about material defects. In any case, external damage to the packaging must be reported immediately to both the delivering carrier and the supplier. Further damages must be reported to the supplier within five working days after delivery of the goods at the latest.
  6. In the case of notices of defects, payments of the purchaser may only be withheld if a notice of defects is asserted, the justification of which is not in doubt, or if the notice of defects is undisputed, or its justification has been legally established. If the notice of defects is made wrongly, the Supplier shall be entitled to demand compensation from the Purchaser for the expenses incurred.
  7. Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable care or due to special external influences that are not required by the contract.
  8. Claims of the purchaser for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour, and material costs, are excluded insofar as the expenses increase because the subject of the delivery has been moved to a place other than the place of business of the purchaser.
  9. Claims of recourse of the Purchaser against the Supplier shall only exist insofar as the Purchaser has not entered into any agreements with its Purchaser that go beyond the statutory claims for defects.
  10. Claims for damages shall apply in the rest of Section XII (Other claims for damages). Claims by the Purchaser against the Supplier and its vicarious agents on the grounds of a material defect shall be excluded.

IX. Retention of title

  1. The goods of the deliveries (reserved goods) shall remain the property of the Supplier until all claims to which he is entitled against the Purchaser arising from the business relationship have been fulfilled. Insofar as the value of all security rights to which the Supplier is entitled exceeds the amount of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security rights at the request of the Purchaser.
  2. During the period of retention of title, the purchaser is prohibited from pledging or transferring security and resale is permitted only to resellers in the ordinary course of business and only on condition that the reseller receives payment from his customer or makes the reservation that ownership will not pass to the customer until the latter has fulfilled his payment obligation.
  3. In the event of seizures, seizures or other dispositions or interventions by third parties, the Purchaser shall immediately notify the supplier.
  4. In the event of breaches of obligations by the purchaser, in particular in the event of overdue payment, the supplier shall be entitled to withdraw and withdraw the goods, the purchaser shall be obliged to hand them over. The withdrawal or assertion of the reservation of title does not require the purchaser to withdraw. These acts or the attachment of the reserved goods by the Supplier shall not constitute a withdrawal from the contract unless the Supplier has expressly stated so.
  5. Insofar as the Purchaser resells the reserved goods, he assigns to the Supplier all claims to the Supplier in the amount of the purchase price agreed between the Supplier and the Purchaser (including VAT) which accrue to the Purchaser from the resale. The Supplier's right to collect the receivables itself remains unaffected by this, however the Supplier undertakes not to collect the receivables as long as the Purchaser duly fulfils its payment obligations and is not in default of payment. However, if this is the case, the Supplier may require the Purchaser to disclose the assigned receivables and their debtors, to provide all information required for collection, to hand over the related documents and to notify the debtors (third parties) of the assignment.

X. Impossibility, adaptation of the contract

  1. Insofar as delivery is impossible, the purchaser is entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the purchaser's claim for damages is limited to 10% of the value of that part of the delivery which cannot be delivered due to the impossibility of delivery. This limitation does not apply to the extent that liability is incurred in cases of intent or gross negligence or for personal injury. A change in the burden of proof to the detriment of the purchaser is not connected with this regulation. The right of the purchaser to withdraw from the contract remains unaffected, even if an extension of the delivery period was initially agreed with the purchaser. In the event of only temporary impossibility, Section III (delivery deadlines, delay) applies.
  2. In the event of unforeseeable events within the meaning of No. 2 significantly alter the economic importance or the content of the delivery or significantly affect the operations of the supplier, the contract shall be adjusted accordingly in accordance with good faith. Insofar as this is not economically justifiable, the Supplier shall have the right to withdraw from the contract. If he wishes to make use of this right, he must immediately inform the purchaser of this after becoming aware of the significance of the event.

XI. Other claims for damages

  1. The Supplier shall be liable in accordance with the statutory provisions if the Purchaser makes claims for damages based on intent or gross negligence, including intent or negligence on the part of the Supplier's representatives or vicarious agents. Insofar as the Supplier is not charged with intentional breach of contract, its liability for damages are limited to the foreseeable, typically occurring damage.
  2. The Supplier shall be liable for the breach of essential contractual obligations in accordance with the statutory provisions. However, its liability is limited to the contract-typical, foreseeable damage, insofar as it is not liable due to the assumption of a guarantee for the presence of properties.
  3. Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
  4. Unless otherwise stipulated above, liability is excluded regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpability at the conclusion of the contract, due to other breaches of duty or due to tort claims for compensation for material damage according to Art. § 823 BGB.
  5. Insofar as liability for damages towards the Supplier is excluded or limited, this shall also apply with regard to the personal liability for damages of its employees, employees, employees, representatives and vicarious agents.

XII Price and terms of payment

  1. The prices are based on the price list of the supplier valid at the time of the order confirmation or the delivery. They are exclusive of the statutory value added tax at the rate applicable at the time.
  2. The Purchaser shall be in default of payment of the purchase price from 30 days after receipt of the invoice without the need for a reminder.
  3. The customer shall be entitled to deduct a discount of 2% from the invoice amount, provided that he settles the invoice within 10 days of receipt. However, the prerequisite for a cash discount deduction is that there are no payment arrears from previous deliveries.
  4. Cheques are only considered as payment after they have been cashed. The acceptance of bills of exchange always requires a prior written agreement. If bills of exchange are accepted, bank interest and charges will be invoiced. They are to be paid immediately in cash.
  5. The customer shall only be entitled to set-off if his counterclaims have been legally established, are undisputed or have been recognised by the supplier. The Purchaser shall also have no right of retention in respect of disputed counterclaims.

XIII Place of Performance, Jurisdiction

  1. Place of performance is Niederzissen.
  2. In the event of any disputes arising from the contractual relationship, if the Purchaser is an entrepreneur, a legal entity under public law or a special fund under public law, the action shall be brought before the court having jurisdiction for the Supplier's registered office. The Supplier shall be entitled to bring an action at the Purchaser's place of business.
  3. German law shall apply exclusively to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods, even if the Purchaser's registered office is abroad, or the delivery is made abroad.

XIV Miscellaneous

  1. Any transfer of rights and obligations of the Purchaser under the contract concluded with the Supplier shall require the written consent of the Supplier in order to be effective. Should any provision be or become void, this shall not affect the validity of the other provisions.

Fantasia R. Espig KG, Niederzissen, November 2023