Section 1 General Information
These Terms and Conditions of Sale and Delivery form the basis and an integral part of every contract and are deemed to be accepted in full by the customer upon acceptance of the offer or placement of the order. Any terms and conditions of purchase of the customer shall in no case be binding upon us. Verbal orders or verbal supplementary agreements require our written confirmation. These Terms and Conditions of Sale and Delivery are binding both for the initial order and for all subsequent orders.
Section 2 Offer and Orders
Information regarding prices, scope of delivery, availability, and delivery times in our offers is non-binding. If the customer accepts an offer made by us, mutual obligations are only established upon our corresponding written order confirmation.
If delivery is made from stock within a reasonable period of time, the invoice issued shall simultaneously serve as order confirmation and dispatch notification.
Section 3 Prices
Our prices are ex works, excluding packaging, insurance, customs duties, and similar charges. A surcharge will be applied for small quantities by special agreement. We reserve the right to make any necessary price adjustments during the contract period if compelled by compelling reasons. In this case, the contractual partner will be granted the right to withdraw from the contract. For orders that deviate from the quantities specified in the quotation, we reserve the right to charge an expense-related small-quantity surcharge.
Section 4 Delivery
Unless the items are stock goods, pre-production samples can be provided upon request prior to delivery, which will then serve as the binding standard for the quality and design of the shipment.
The quantities or weights specified by our shipping department on delivery notes or invoices are authoritative for the delivery.
We reserve the right to over- or under-deliver by up to approximately 10% of the order quantity.
Weight tolerances of approx. 10% and a scrap rate of 2% are customary in the industry.
Delivery is ex-works at the customer's expense and risk, even if the shipping costs are covered by us. In the absence of specific shipping instructions from the customer, we will select the most suitable shipping method.
Empty containers and residual products are generally returned at the customer's expense upon delivery of the goods. In cases of force majeure such as operational disruptions, raw material shortages, traffic disruptions, strikes, etc., which affect or hinder our manufacturing or shipping, we are released from our delivery obligations for the duration of these disruptions and to the extent of their effects.
We are under no obligation to procure in advance the raw materials required to execute the order.
Section 5 Delivery Period
The delivery dates confirmed by us are generally to be observed. In the event that a delivery deadline is exceeded, the customer can only assert claims if delivery is not made despite a reasonable grace period having been set, or if the withholding of delivery on our part cannot be adequately justified. Withholding of delivery is in any case justified if the customer lodges a complaint regarding the design of pre-production samples or initial partial deliveries. In such cases, delivery or further delivery can only take place once the matter has been clarified.
Any claim by the buyer due to non-delivery can only correspond to the difference between our selling price and the price the customer paid for equivalent goods when covering their requirements elsewhere.
Unless expressly agreed otherwise, call-off orders expire at the end of the calendar year. In the event of non-fulfillment of the call-off order by the customer, we are entitled to cancel the quantities not called off or to demand acceptance and payment, and, if applicable, claim damages for breach of contract.
Section 6 Complaints
Complaints can only be considered if they are submitted to us in writing within 8 days of receiving the goods. In the event of a timely and accepted notice of defect, a replacement delivery will be made following the return of the disputed goods. Further claims or compensation for damages are excluded and will not be acknowledged.
§ 7 Payment and Retention of Title
1st payment
Unless otherwise agreed, the seller's invoices are payable without deduction within 30 days of the invoice date.
The seller is entitled, despite any provisions of the buyer to the contrary, to apply payments first to the buyer's older debts, and will inform the buyer about the nature of the offset made. If costs and interest have already accrued, the seller is entitled to apply the payment first to the costs, then to the interest, and finally to the principal claim. A payment is only deemed to have been made once the seller has access to the funds. In the case of checks, payment is only considered fulfilled once the check has been cashed. Bills of exchange and checks are in all cases accepted from the customer only subject to receipt of their amounts by us. We assume no obligations regarding the lodging of protests and timely presentation toward customers who provide us with bills of exchange or checks as conditional payment. Any costs we may incur to obtain the amounts of the bills of exchange or checks shall be borne by our customer. In the event of the customer's failure to meet payment obligations, we reserve the right to suspend any further deliveries, subject to further claims. The customer is only entitled to a right of retention of payment up to the amount of the purchase price for the affected quantity or units/cans from the respective order.
2. Retention of Title
Until all claims (including all balance claims from current accounts) that the Seller is entitled to against the Buyer on any legal ground now or in the future have been fulfilled, the Seller shall be granted the following securities, which he will release upon request at his discretion, provided their value sustainably exceeds the claims by more than 20%.
The goods remain the property of the Seller. Processing or transformation is always carried out for the Seller as manufacturer, but without obligation for him. If the (co-)ownership of the Seller expires as a result of combination, it is agreed here and now that the (co-)ownership of the Buyer in the unified item shall pass to the Seller in proportion to its value (invoice value). The Buyer stores the (co-)ownership of the Seller free of charge. Goods in which the Seller holds (co-)ownership are hereinafter referred to as reserved goods.
The Buyer is entitled to process and sell the reserved goods in the ordinary course of business, provided he is not in default. Pledges or transfers by way of security are inadmissible. The claims arising from the resale or any other legal ground (insurance, unlawful act) with respect to the reserved goods (including all balance claims from current accounts) are hereby assigned by the Buyer in full to the Seller by way of security. The Seller revocably authorizes him to collect the claims assigned to the Seller in his own name on the Seller's account. This collection authorization can only be revoked if the Buyer fails to properly meet his payment obligations.
In the event of third-party access to the reserved goods, in particular seizures, the Buyer shall point out the ownership of the Seller and notify him immediately so that the Seller can enforce his ownership rights. Insofar as the third party is unable to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for them.
In the event of a breach of contract by the Buyer – in particular default of payment – the Seller is entitled to take back the reserved goods or, if applicable, to demand the assignment of the Buyer's claims for return against third parties. Neither taking back nor seizing the reserved goods by the Seller shall constitute a withdrawal from the contract.
§ 8 Custom-Made Products
For goods manufactured by us in accordance with drawings or samples, the customer assumes liability in the event of infringement of third-party intellectual property and patent rights. Samples or models manufactured by us based on customer samples are only binding in terms of their external shaping and technical execution. The same applies to samples or models manufactured by us based on specifications according to our own drawings. Any responsibility regarding suitability for the intended purpose must be rejected in any case. Our drawings, samples, and molds remain our property at our free disposal, even if the customer has paid pro-rata costs. 50% of the costs are to be paid by the customer upon placement of the order and 50% upon presentation of the first initial sample. They will be amortized by us during ongoing deliveries until the total amount is fully balanced. This is done by means of a respective credit note of generally 5% of the net value of the goods. Formulations provided by us remain our property at our free disposal, even if the customer has paid pro-rata costs. They may not be passed on to third parties, sold, or used, regardless of the purpose, without our written consent.
Approvals from the relevant institutions are the responsibility of the customer themselves. We are not liable for any consequential damages arising from the use of the formulations.
Section 9 Contract Processing
Deliveries of raw materials and semi-finished products for contract processing or finishing are carried out at the customer's expense and risk, as is the return of the processed goods. We cannot provide compensation or allowance for depreciation for damage to or loss of materials stored on our premises. No insurance has been taken out by us to cover these risks.
Section 10 Resale, Export
Resale of our goods, in particular export, as well as any use for purposes not covered by the contract, requires prior agreement.
Section 11 Place of Performance, Place of Jurisdiction
Place of performance is the Engen/Welschingen plant. Place of jurisdiction is Singen.