AGB
Harold Scholz & Co. GmbH
General terms and conditions of sale and delivery
1. GENERAL
1.1 Our terms and conditions of delivery and payment shall apply, in the latest version in each case, to all current and future orders of the domestic or foreign customer, unless we have expressly acknowledged deviations in writing. Ancillary agreements and subsequent amendments shall only be binding for us after our written confirmation. This shall also apply to any waiver of the written form clause. Acceptance of our deliveries and services shall be deemed as acknowledgement of our terms of delivery and payment.
1.2 Any terms and conditions of purchase of the contractual partner shall only be binding for us after explicit and written acknowledgement. The same shall apply to any other general terms and conditions of the contractual partner.
1.3 Agreements of the contractual partner with travelers, representatives and agents are only binding for us after our written confirmation. Our representatives, agents and travelers are only authorized to accept cash and checks upon presentation of a power of attorney for collection.
1.4 We shall be entitled to process data of the Customer which are related to the business relationship with the Customer within the meaning of the German Federal Data Protection Act and the EU Basic Data Protection Regulation.
2. OFFER AND CONCLUSION OF CONTRACT
2.1 Our offers are subject to confirmation. A delivery or other contract shall not be concluded until we have confirmed the customer order or other order in writing or have delivered the goods.
2.2 We reserve the right to make changes to the manufacturing process and the product composition, provided that the nature and quality of the product are not adversely affected.
2.3 Unless otherwise expressly agreed, information published by us in catalogs, brochures and other publications in text or picture form (e.g. descriptions, illustrations or drawings) conclusively characterize the quality of the goods delivered by us and their possible uses. In this respect, they are approximate values customary in the industry, unless they are expressly designated as binding in the order confirmation. Other manufacturer's specifications are not binding.
2.4 Excess and short deliveries shall be deemed agreed within the usual scope.
3. PRICES
3.1 The prices valid on the day of delivery shall be decisive for the calculation, unless a fixed price has been expressly agreed in writing.
3.2 Unless expressly stated otherwise, all prices are net prices excluding value-added tax, which the contractual partner must additionally pay at the respective statutory rate, and shall apply ex our production site without packaging. Unless otherwise specified, price quotations refer to the European currency (Euro).
3.3 If the basis of our calculation changes, we reserve the right to adjust prices.
3.4 Any discounts granted, including volume discounts and annual bonuses, shall lapse in the event of default in payment by the Contractual Partner, opening of insolvency proceedings against the assets of the Contractual Partner or rejection of the opening of such proceedings for lack of assets.
4. DELIVERY
4.1 Delivery periods (deadlines) shall commence on the date of our order confirmation, but not before all technical and commercial details have been clearly clarified. The delivery deadline shall be deemed to have been met if the item has left our factory or warehouse by the time it expires or if notification has been given that the item is ready for dispatch if the goods cannot be dispatched on time through no fault of our own.
4.2 In the case of deadlines and delivery dates that are not expressly designated as "fixed" in the order confirmation, the contractual partner may set us a reasonable grace period for delivery/service after the deadline has been exceeded. We may only be in default upon expiry of this grace period.
4.3 Deadlines and dates shall be extended, without prejudice to our rights arising from delays in payment by the contractual partner, by the period of time by which the contractual partner fails to meet its obligations towards us.
4.4 Unforeseeable, extraordinary events for which we are not responsible, such as labor disputes, operational disruptions, official measures, transport disruptions or other cases of force majeure, regardless of whether these events occur at our company or at our supplier, shall release us from the obligation under the respective contract; however, obstacles of a temporary nature only for the duration of the obstacle plus a reasonable start-up period. If delivery subsequently becomes impossible or unreasonable for one of the parties due to such events, both
parties shall be entitled to withdraw from the contract.
4.5 Our liability for damage caused by delay due to a slightly negligent breach of duty is excluded, unless the breach of duty results in injury to life, body or health. A change in the burden of proof to the disadvantage of the contractual partner is not associated with this regulation.
4.6 We shall be entitled to make partial deliveries insofar as these are reasonable for the contractual partner. Partial deliveries may be invoiced separately.
5. INFORMATION AND ADVICE
Information and advice regarding our products are based on our experience to date. The values given are average values. Suitability tests of the delivered goods and the observance of processing instructions are not rendered superfluous by information or advice. Verbal information is not binding. Section 13 of these terms and conditions shall apply to any liability.
6. SHIPPING AND TRANSFER OF RISK
6.1 Unless otherwise agreed, delivery shall be ex works. If one of the Incoterms has been agreed as a delivery condition, the version in force at the time of the conclusion of the contract shall apply.
6.2 If the goods are shipped to a place other than the place of performance at the request of the contracting party, the contracting party shall bear all costs incurred thereby. We are free to choose the
transport route and the transport company at our discretion. The contractual partner shall notify us in writing of any transport damage immediately upon receipt of the goods, stating the type and extent of the damage. Insurance of the goods against transport damage, transport loss or breakage shall only be taken out at the express request of the contractual partner at his expense and for his account.
6.3 In the case of deliveries ex works, shipment and transport shall always be at the risk of the contractual partner. This shall also apply if delivery is made from the warehouse of a third party (drop shipment) and for the return of goods or empties (returnable transport packaging). The risk shall pass to the contractual partner, even in the case of partial delivery, as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of dispatch or, in the case of delivery ex works, has left our works.
6.4 If the shipment of the delivery is delayed for reasons attributable to the contracting party or if the contracting party itself is responsible for the transport of the goods, the risk shall pass upon notification to the contracting party that the goods are ready for shipment. Storage costs after transfer of risk shall be borne by the contractual partner. In the case of storage in our factory or warehouse, the storage costs shall amount to 1% of the invoice amount per month. We reserve the right to prove higher storage costs. We are entitled to dispose otherwise of the delivery after the fruitless expiry of a reasonable period and to supply the contractual partner within a reasonably extended period.
6.5 In the case of deliveries free domicile/warehouse, the risk shall pass to the contracting party, even in the case of partial delivery, as soon as the goods have arrived at its business premises/warehouse ready for unloading. Unloading must be carried out immediately and properly by a sufficient number of workers and unloading equipment to be provided by the contractual partner. Waiting times shall be charged by us in accordance with customary industry practice. If the journey to the place of destination fails for reasons which lie within the sphere of risk of the contractual partner, the risk shall pass to the
contractual partner upon failure of the journey. This shall also apply in the event of unjustified refusal of acceptance by the contractual partner. Clause 6.4 shall apply accordingly.
7. PAYMENT
7.1 Payments shall be made in Euro (€) and shall be free of postage and expenses. They may only be made to the paying agents specified by us. Bills of exchange and checks shall only be considered as payment after they have been cashed and shall be accepted without obligation to present and protest them in due time.
7.2 Unless expressly agreed otherwise, payments shall be made within 15 days of the invoice date without deduction. If payment deadlines are exceeded, we shall be entitled to charge interest at a rate of 9 percentage points above the prime rate (§ 247 BGB) p.a..
7.3 The offsetting of counterclaims by the contracting party is only permitted if these counterclaims are undisputed or have been legally established. Due to defects, the contractual partner may at most withhold three times the amount of the subsequent performance expenditure. If the right of retention is exercised, the contractual partner shall be obliged to provide us with security in the amount of the unpaid partial amount by means of a bank guarantee or deposit with a notary of his choice, at our discretion.
7.4 In the event of untimely payment, we shall be entitled to
7.4.1. assert all claims arising from this or other transactions, even if they are not yet due, against the Purchaser immediately;
7.4.2. withhold our deliveries or other services arising from this or other orders until all our outstanding claims arising from this or other orders have been satisfied in full by the Purchaser;
7.4.3. demand an appropriate security deposit;
7.4.4. demand the return of the goods delivered by us which are still subject to retention of title. If the goods are no longer usable or no longer usable without restrictions due to the passage of time, we shall be entitled to demand compensation for the value.
7.5 If, after conclusion of the contract, we become aware of facts concerning a significant deterioration in the financial circumstances of the contracting party which, according to prudent business judgment, are likely to jeopardize our claim to counter-performance - this includes, in particular, an application for the institution of insolvency proceedings, we shall be entitled to demand the provision of suitable security within a reasonable period of time until the time of its performance or performance in return. If the contractual partner does not comply with our justified
request in due time, we may withdraw from the contract or claim damages. In this situation, we may demand immediate payment of all amounts - including any deferred amounts.
8. RESERVATION OF OWNERSHIP
8.1 All goods delivered shall remain our property until full payment of the remuneration owed including all ancillary claims. In the case of acceptance of bills of exchange or checks, payment shall only be deemed to have been made upon their final redemption. Ancillary claims include in particular the costs of packaging, freight, insurance, bank charges, dunning charges, lawyers' fees, court costs and other costs.
8.2 The contracting party shall take custody of the goods subject to retention of title for us in the customary manner. He shall be obliged to store and mark the goods belonging to us separately. We shall be entitled to inspect the separate storage and labeling after prior notification at short notice. If the opening of insolvency proceedings on the assets of the contractual partner is applied for, we shall be entitled to immediately mark the goods subject to retention of title as our property ourselves and/or to take possession of them again ourselves. The contractual partner shall be liable for the loss of our goods. He shall insure the goods at his own expense in our favor against all risks, in particular against fire, water and theft. The insurance claims are hereby assigned to us in advance. We are to be informed immediately of any damage that has occurred.
8.3 Processing of the goods subject to retention of title shall be carried out on our behalf as manufacturer within the meaning of § 950 BGB (German Civil Code) without any obligation on our part. The processed goods shall be deemed to be goods subject to retention of title within the meaning of Section 8.1. If the customer processes, combines or mixes the goods subject to retention of title with other goods, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership lapses as a result of combining or mixing, the customer shall already now transfer to us the
ownership rights to which it is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safe custody for us free of charge. The co-ownership rights hereunder shall be deemed to be reserved goods within the meaning of clause 8.1.
8.4 The contracting party shall only be entitled to resell, process or combine the reserved goods with other items or otherwise install them (hereinafter also referred to as "resale") in the ordinary course of business and as long as it is not in default. Any other disposal of the reserved goods is not permitted. We must be notified immediately of any seizure or other access to the reserved goods by third parties. All intervention costs, e.g. the costs of a third party action of opposition in accordance with § 771 ZPO (German Code of Civil Procedure), shall be borne by the contractual partner, insofar as they cannot be collected by the third party (opponent of the action of opposition) on first demand and the intervention was justified. If the contracting party defers the purchase price to its customer, it shall reserve title to the reserved goods vis-à-vis the latter under the same conditions under which we have reserved title to the delivery of the reserved goods; however, the contracting party shall not be obliged to also reserve title with regard to claims arising vis-à-vis its customer only in the future. Otherwise, the contractual partner shall not be authorized to resell the goods.
8.5 The claims of the contractual partner arising from the resale of the reserved goods are hereby assigned to us. They shall serve as security to the same extent as the reserved goods. The contractual partner shall only be entitled and authorized to resell the goods if it is ensured that the claims to which it is entitled therefrom are transferred to us.
8.6 If the goods subject to retention of title are sold by the contracting party together with other goods not supplied by us for a total price, the assignment of the claim from the sale shall be made in the amount of the invoice value of our respective goods subject to retention of title sold.
8.7 If the assigned claim is included in a current account, the contracting party hereby assigns to us a part of the balance corresponding to the amount of this claim, including the closing balance from the current account.
8.8 The contractual partner shall be authorized to collect the claims assigned to us until revoked by us. We shall be entitled to revoke this authorization if the contractual partner does not properly meet its payment obligations arising from the business relationship with us or if we become aware of circumstances that are likely to significantly reduce the creditworthiness of the contractual partner. If the conditions for exercising the right of revocation exist, the contractual partner shall, at our request, immediately disclose to us the assigned claims and their debtors, provide all information required to collect the claims, hand over to us the relevant documents and notify the debtor of the assignment. We shall also be entitled to notify the debtor of the assignment ourselves.
8.9 If the nominal value (invoice amount of the goods or nominal amount of the claim rights) of the securities existing for us exceeds the secured claims by more than 20% in total, we shall be obliged to release securities of our choice to this extent at the request of the contractual partner.
8.10. If we assert the reservation of title, this shall only be deemed to be a withdrawal from the contract if we expressly declare this in writing. The contractual partner's right to possess the reserved goods shall expire if it fails to fulfill its obligations under this or any other contract.
9. LOAN CONTAINER
Returnable containers (marked as our property) are to be made available again empty for collection within 6 months after delivery. In the event of late return, we may demand reasonable compensation for use. If our returnable containers have not been returned even one and a half years after delivery, we shall be entitled to procure replacements and to invoice the costs of replacement.
10. PROPERTY RIGHTS
10.1 We reserve the property rights and copyrights to illustrations, drawings, samples and other documents. They may not be reproduced or made accessible to others without our consent and must be returned to us immediately upon request or if the order is not placed.
10.2 If the industrial property rights of third parties are infringed during the manufacture of the products according to samples or other information provided by the contractual partner, the contractual partner shall indemnify us against all claims.
10.3 If the order is not placed with us, we shall be entitled to demand reasonable remuneration for product samples prepared by us.
11. FORMULATIONS, DOSING TECHNOLOGY
If the Customer/Orderer has not specifically specified the recipe to be used, the following shall apply:
11.1 We shall be exclusively entitled to the intellectual property rights to the recipe and the dosing technology for the product manufactured by us. This shall also apply if we manufacture a product according to more detailed specifications of the Customer/Orderer, insofar as the Customer/Orderer does not provide us with the entire recipe and dosing technology.
11.2 The manufactured product shall be available to the Customer/Orderer for unrestricted use. However, he shall not be entitled to reproduce the product with our recipe or to have it reproduced. This shall also apply if the Customer/Orderer succeeds in reconstructing the recipe not made available to him or made available for inspection by analyzing the product concerned. We alone shall be entitled to the intellectual property rights to the formulations and the dosing technology.
12. WARRANTY
12.1 We are not liable for improper or inappropriate use of the products.
12.2 The contracting party shall be obliged to carefully inspect the delivered goods - even if samples or specimens had been sent beforehand - for completeness and correctness immediately after their arrival at his premises. The delivery shall be deemed to have been approved if a notice of defect has not been received in writing, by fax or e-mail within 3 working days after receipt of the goods at the place of destination, or, if the defect could not be detected during a proper inspection, within 3 working days after its discovery. This shall also apply to excess deliveries. If an excess delivery is not notified within 3 days of receipt of the goods at the place of destination, it shall be deemed to have been approved. Our sales representatives shall not be entitled to accept notices of defects and quantity. 12.3 In the event of a justified notice of defect, the contracting party shall initially only be entitled to subsequent performance, which we shall provide at our discretion by delivery of defect-free products (against return of the rejected goods) or by rectification of the defect. If the supplementary performance has failed or is unreasonable for the contractual partner (§ 440 BGB) or dispensable, because
a. we reject the subsequent performance conclusively
b. we fail to effect subsequent performance on a contractually specified date or within a specified period and the contracting party has tied the continuation of its interest in performance in the contract to the timeliness of performance, or
c. if there are special circumstances which, after weighing the interests of both parties, justify immediate withdrawal (Section 323 (2) of the German Civil Code (BGB)),
, the contracting party shall be entitled immediately to reduce the purchase price or, at its option, to withdraw from the contract and to claim damages in lieu of performance or reimbursement of expenses incurred in vain in accordance with Clause 13.
12.4 We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs. This shall not apply if the expenses increase because the product has been taken to a place other than the domicile or the commercial establishment of the contractual partner after delivery, unless the transfer corresponds to the intended use of the item.
12.5 If the contracting party accepts defective goods although it recognizes the defect, it shall only be entitled to the claims and rights in case of defects if it reserves them because of the defect upon acceptance.
12.6 The assignment of claims of the contractual partner due to defects to third parties is excluded. In the event of notices of defects, payments of the contractual partner may only be retained to an extent that is in reasonable proportion to the asserted defects.
13. LIABILITY FOR DAMAGES
13.1 We shall be liable for damages resulting from injury to life, body or health in accordance with the statutory provisions.
13.2 In all other respects, our liability for breach of duty and our non-contractual liability shall be limited to intent and gross negligence. Liability for gross negligence on the part of our employees, staff and simple vicarious agents is excluded in this respect.
13.3 The limitation of liability or the exclusion of liability pursuant to Section 12.2, Sentence 1 shall not apply to the breach of such contractual obligations which make the proper performance of the contract possible in the first place and on the observance of which the contractual partner may rely (so-called cardinal obligations or material contractual obligations).
13.4 Liability shall be limited to the damage typical for the contract, the occurrence of which we had to expect at the time of conclusion of the contract due to the circumstances known to us at that time.
13.5 Any further liability shall be excluded irrespective of its legal basis. In particular, we shall not be liable for lack of economic success, loss of profit, indirect damages, consequential damages and damages from third-party claims.
13.6 The above limitations of liability shall apply equally to claims for reimbursement of futile expenses (§ 284 BGB).
13.7 Claims for damages against us, irrespective of the legal grounds, shall become statute-barred within two years from the statutory commencement of the limitation period, but no later than from delivery of the item.
13.8 The above provisions do not imply a reversal of the burden of proof to the disadvantage of the contractual partner.
13.9 Claims for damages under the Product Liability Act shall remain unaffected.
13.10. We are not liable for the usability and suitability of our products for the specific customer purpose.
14. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW
14.1 The place of performance for all mutual obligations shall be the registered office of Harold Scholz & Co. GmbH.
14.2. The exclusive place of jurisdiction for all disputes shall be our registered office as recorded in the commercial register if the contractual partner is a merchant or a legal entity under public law within the meaning of Section 29 (2) of the German Code of Civil Procedure (ZPO). However, we shall also be entitled to sue the contractual partner at its statutory place of jurisdiction.
14.3 The relationship between us and the contractual partner shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the rules of private international law. In addition, the INCOTERMS shall apply to the interpretation of the contract.
14.4 Should individual provisions be ineffective or lose their effectiveness due to a circumstance occurring at a later date, the effectiveness of the remaining provisions shall remain unaffected.
Status: May 2018 - Harold Scholz & Co. GmbH