1 General
1.1 Our terms and conditions apply exclusively; we do not recognize conflicting or divergent terms applied by the customer, unless we have expressly accepted them in writing.
Our terms and conditions also apply if we supply the customer without reservation even though we are aware of conflicting or divergent terms applied by the customer.
1.2. Our terms and conditions apply only to companies. Companies within the meaning of our terms and conditions are natural or legal persons or partnerships with legal personality, which enter into a business relationship and act in the exercise of a commercial or self-employed professional activity.
1.3. The terms and conditions apply for the duration of the business relationship; they also apply to all future transactions with the customer.
1.4. Verbal orders or verbal subsidiary agreements require our written confirmation.
2 Offers - prices
2.1. Our offer is non-binding unless the order confirmation states otherwise.
2.2. In ordering the goods the customer makes a binding declaration that he wishes to acquire the ordered goods. We are entitled to accept the contract offer contained in the order within 4 weeks of receiving it. Acceptance may either be declared in writing or by delivering the goods to the customer.
2.3. Unless the order confirmation states otherwise, our prices are "ex works", excluding packaging (this is invoiced separately), insurance and customs duties.
Taking into account the interests of the customer we reserve the right to change or depart from our prices accordingly if, after the conclusion of the contract, there are cost increases due in particular to collective wage agreements, changes in material prices or physical or chemical changes in the production materials provided to us. We will provide the customer with proof of these on request.
A separately agreed surcharge will be made for small quantities.
2.4. We reserve ownership and copyright of illustrations, drawings, calculations and other documents that accompany our offers. This also applies to written documents that are designated as "confidential". They may not be passed on to third parties without our express consent.
3 Delivery, default of acceptance
3.1. If the order is not for stock items, upon request reference samples will be made available before delivery. These then will be valid for the quality and execution of the delivery. The cost of the sample and its delivery will be borne by the customer.
3.2.The specified quantities or weights entered by our shipping department on the delivery note or invoice will be decisive for the delivery.
3.3. We reserve the right to make excess or short deliveries up to about 10% of the ordered quantity.
Weight tolerances of approximately 10% and scrap of 2% are standard within the industry. The customer will be notified of any higher scrap level caused by the active ingredients, or this will be indicated in the data sheet for the article.
Delivery is ex works for the account and risk of the customer, even if the transport costs are borne by us. Without special shipping instructions from the customer the most convenient shipping method will be chosen by us. After delivery any empty containers and product residues will always be returned at the expense of the customer.
3.4.In cases of force majeure such as operational disturbances, lack of raw materials, transport disruptions, strikes, etc., which affect or hinder us in production or delivery, we shall be exempted from our delivery obligations for the duration of these disturbances and to the extent of their effects.
3.5. We will be under no obligation to cover our requirements of the resources necessary to execute the order in advance.
3.6. A precondition for the start of the non-binding delivery time stated by us requires the clarification of all technical issues and the timely and proper fulfillment of the customer's obligations. Stated delivery times are always to be regarded as approximate and not binding.
Goods provided by the customer has to be provided at least 1 week before the notified production date. Late deliveries release us from our obligation to meet any deadlines.
Delivery will be made uninsured and at the expense and risk of the consignee.
3.7. The delivery period will not begin before we receive any documents, permits, approvals etc. or any agreed advance payment to be provided by the customer. The risk of accidental loss and accidental deterioration of the goods is transferred to the customer on the delivery of the goods to the forwarder, carrier or other specific person or institution entrusted with the transport. Delivery shall be deemed to have taken place if the customer is in default of acceptance.
3.8. Goods damaged or lost during transport will not be replaced.
3.9. The contract is concluded subject to a right of withdrawal on our part if our suppliers fail to supply us correctly and on time. This applies only in the event that the non-delivery is not caused by us, and in the event that a congruent hedging transaction has been implemented with our supplier. The customer will be immediately informed about the unavailability of the service and our withdrawal. Any payment made will be reimbursed immediately.
3.10. Call-off orders will terminate at the end of the calendar year, unless expressly agreed otherwise. In the event of non-fulfilment of the call-off order by the customer we will be entitled to cancel the quantities not called off, or to demand acceptance of the goods together with payment and if appropriate damages for non-performance of the contract.
We will be entitled to invoice the customer for material specifically procured for this order or customer on our terms of purchase with the customary bank interest rates.
4 Terms of payment
4.1. Unless otherwise agreed, the seller's invoices are payable without deduction within 30 days of the invoice date.
Despite any terms to the contrary applied by the customer, the seller will be entitled to offset payments first against the customer's older debts, and will inform the customer correspondingly of how payments have been attributed. If costs and interest have already been incurred, the seller will be entitled to offset the payment first against these costs, then the interest and finally against the principal performance of the contract.
A payment will be deemed to have been made once the seller can dispose over the amount. In the case of cheques, payment will be deemed to have been made when the cheque is cashed. Bills and cheques will be accepted from the customer only on condition of receipt of the relevant amounts by us.
We accept no obligations in terms of protest and timely submission towards customers who make payments in the form of bills of exchange or cheques. Any costs incurred by us in cashing the bill or cheque will be borne by the customer.
If the customer is in default of his payment obligations we will be able, without prejudice to further claims, to terminate all further deliveries without this giving rise to a claim for compensation.
4.2. Deduction of a cash discount requires a special written agreement. If the period allowed for payment is exceeded, interest will be charged at 8% above the base rate.
We reserve the right to claim further damages.
4.3. We expressly reserve the right to withdraw from the contract if it is determined after the conclusion of the contract that the customer has provided false information regarding his creditworthiness or it becomes known that the customer is not creditworthy, and that our financial claims are therefore at risk. The same applies if the customer, in spite of repeated reminders, fails to meet his payment obligations, including those from previous contracts.
4.4. The customer will only have the right to set off any counterclaims if such counterclaims have been legally established or recognized by us. The customer can only exercise a right of retention if his counterclaim is based on the same contract.
5 Contract manufacturing
5.1. In contract manufacturing a deviation from the agreed delivery quantity or weight by up to 10% and scrap of up to 2% will be permissible.
5.2. Samples provided by us will serve only as approximate type patterns.
5.3. In contract manufacturing the customer is responsible for the legal permissibility in terms of the applicable regulations of the goods manufactured and distributed, as well as the consequences of their use, unless we have agreed in writing that we will comply with specific instructions relating to production and inspection.
5.4. Raw materials that are provided to us at the request of the customer will only be examined for their identity. We will only be obliged to make further investigation as regards quality, purity, chemical composition, etc. if we have expressly agreed to do so in writing.
We only accept responsibility for the loss, destruction or deterioration of materials made available to us by the customer in cases of wrongful intent or gross negligence.
The compensation will be limited to the acquisition price or production cost of the customer.
5.5. The customer must provide us with clear production specifications in writing. Special requests, such as in relation to solubility, degradability, suitability for tropical climates, etc. must be notified to us in writing for each individual order. Otherwise it will be deemed to have been agreed that we must work in accordance with the procedures which seem appropriate to us and which will be regarded as having been approved by the customer.
5.6. For goods that we manufacture according to recipes which the customer has provided or which we have developed on behalf of the customer and have been approved by him, we assume no responsibility or liability for therapeutic, pharmacological, toxicological or other properties which affect effectiveness, or for any consequences of their use, unless we have expressly agreed to do so in writing.
5.7. If it is found during the implementation of the order that it cannot be implemented in accordance with the instructions provided by the customer, or can only be implemented under difficult conditions, we will be able to demand compensation from the customer for the resulting additional cost, provided that we have notified him of the difficulty.
6 Special production
6.1.
For goods that we have manufactured according to drawings or samples, the customer assumes liability for any breach of the proprietary and patent rights of third parties. The customer will exempt us in particular from legal and court costs. Samples or models produced by us on the basis of samples provided by the customer will only be binding in their external form and technical execution. The same applies to samples or models which have produced by us on the basis of our own drawings created on data provided by the customer. In all cases any responsibility as to suitability for the intended use is rejected.
Our drawings, patterns and forms are at the customer's disposal but remain our property, even if the customer has paid part of the costs.
6.2.The costs are to be paid by the customer: 50% with order and 50% upon submission of the first outturn sample. They will be amortized by us to the total amount during the ongoing deliveries. This will be in the form of a credit, generally worth 5% of the net goods value. Recipes provided by us are at the disposal of the customer but remain our property, even if the customer has paid part of the costs. Without our written consent they may not be passed on or sold to third parties for any purpose whatsoever, or used in other ways.
6.3. Approvals from relevant institutions are the responsibility of the customer himself. We accept no liability for consequential damage resulting from the use of the recipes.
7 Contract processing
7.1. Deliveries of raw materials and semi-finished goods for contract processing or finishing are made at the expense and risk of the customer. The same applies to the return of the processed goods. We are unable to grant compensation or impairment compensation for damage or loss in relation to materials stored with us. We have concluded no insurance cover for such risks.
8 Warranty and general limitation on liability
8.1. The customer must report to us obvious defects within a period of 8 days from receipt of the goods, otherwise the assertion of warranty claims will be excluded. Sending the report in good time will be sufficient to meet the deadline. The customer bears the full burden of proof in relation to the preconditions for all claims, in particular for the defect itself, for the time of discovery of the defect, and for making the complaint within the deadline.
This is without prejudice to §§ 377, 378 HGB.
8.2. We do not provide the customer with warranties in the legal sense. Manufacturer warranties remain unaffected. In relation to the properties of the goods, only the manufacturer's product description will be regarded as having been agreed.
8.3. If the customer opts to withdraw from the contract due to a legal or material defect following the failure to rectify the defect, he will not be entitled to claim damages for the defect.
If the customer opts for compensation following the failure to rectify the defect, the goods will remain with the customer if this is reasonable. The compensation will be limited to the difference between the purchase price and the value of the defective goods.
This does not apply if we have fraudulently caused the breach of contract.
8.4. For the customer the warranty period is one year from date of delivery. This does not apply to defects which are not reported to us in good time. Claims for damages expire one year from the date of delivery. This does not apply if we can be accused of fraudulent intent.
8.5. We are not liable for defects in goods, raw materials or packaging which are supplied either by the principal or on his behalf. The principal is responsible for insuring the materials provided by him.
Except for wrongful intent and gross negligence we will only be liable for processing errors and damage to the goods provided and any consequential damage to the amount of the agreed contract processing operations.
This also applies to damage caused during or due to the storage of goods delivered by the principal. We accept no liability in relation to goods in our care.
8.6. Regardless of the legal nature of the asserted claim, in relation to minor negligence in any breach of our obligations, our liability will be limited to the predictable, direct average damage typical for the contract in relation to the specific goods. This also applies to slightly negligent breaches of duty by our legal representatives or agents. With regard to companies we accept no liability for slightly negligent violation of insignificant contractual obligations.
The above limitations do not affect claims of the customer resulting from product liability.
In addition these limitations of liability do not apply to injury to life, limb or health on the part of the customer for which we are responsible. They also do not apply if we can be accused of wrongful intent or gross negligence.
8.7. In general the customer is responsible for the suitability of the packaging. The manufacturer is under no obligation to perform the appropriate compatibility tests, long-term storage etc.. The facilities offered by us are provided to the best of our knowledge and belief, and are based on the status of our present expertise.
9 Retention of title
9.1. Deliveries remain our property until all our claims have been met, which includes claims from other ongoing business. In the case of account purchases the retained title of the deliveries (reserved goods) serves as security for the balance owed to the supplier.
If liability in relation to a bill of exchange is incurred by us in connection with the payment of the purchase price, the retention of title will not expire before the bill of exchange is honoured by the customer as the drawee.
If the value of existing securities for the supplier exceeds his total claims by more than 20%, the supplier will be obliged at the customer's request to release securities at the discretion of the supplier to this extent.
9.2. Any processing by the customer on our behalf takes place under exclusion of acquisition of ownership in accordance with § 950 BGB. It is also hereby agreed that in terms of contracted services we are the manufacturers within the meaning of § 950 BGB and acquire ownership of the products or goods.
The customer is permitted to sell the goods only in the ordinary course of business on condition that he also agrees retention of title in accordance with the preceding paragraphs with his own customers.
The customer will have no further right to dispose over the reserved goods, in particular with regard to pledging and transfer of ownership.
9.3. In the event of resale the customer hereby assigns to us, until all the claims of the supplier have been met, all outstanding payments and other claims against his customers with all ancillary rights.
At our request the customer will be obliged to provide us with all the information and documents which are required to assert the rights of the supplier in relation to the customer's own customers.
Confiscation or seizure of the reserved goods by third parties must be reported to the supplier immediately. Any resulting intervention costs will in all cases be borne by the customer, unless they are borne by third parties. If in accordance with the above provisions the supplier makes use of his retention of title by taking back the reserved goods, he will be entitled to sell the goods by private contract or auction them.
9.4. In this event the customer will not have any claims under competition law. The reserved goods will be taken back on the basis of the proceeds obtained, but not exceeding the agreed delivery prices. Further claims for damages, especially lost profits, remain reserved.
10 Place of performance and jurisdiction
10.1. The place of performance will be the Engen-Welschingen plant. The exclusive place of jurisdiction for all disputes arising from this contract is our registered location. The same applies if the customer as an entrepreneur has no general jurisdiction in Germany or if his domicile or habitual residence is not known when the legal proceedings are initiated.
10.2. If any provision of the contract with the customer including these general terms and conditions should be totally or partly ineffective or become so, this will not affect the validity of the remaining provisions.
The wholly or partially invalid provision is to be replaced by whatever provision comes closest to the business purpose of the invalid provision.