Art. 1 General - Scope
(1) Our General Terms and Conditions apply exclusively; we do not recognise any terms and conditions of the customer that conflict with, supplement or deviate from our General Terms and Conditions unless we have expressly agreed to their validity in text form. Our General Terms and Conditions also apply if we accept the customer's delivery without reservations even if we are aware of the customer terms and conditions varying from or contrary to our Terms and Conditions.
(2) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in our order confirmation shall take precedence over the General Terms and Conditions. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract. All agreements concluded between us and the Customer for the purpose of performing a contract shall be included in this contract in writing.
(3) Our General Terms and Conditions only apply towards entrepreneurs, legal entities under public law and special assets under public law, in the meaning of Art. 310 (1) of the Civil Code BGB.
(4) Unless otherwise agreed, the General Terms and Conditions in the version valid at the time of the customer's order or in any case in the version last communicated to the customer in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
Art. 2 Quote – Quote documents
(1) All of our own offers are subject to change and non-binding and are merely an invitation to the customer to submit a binding offer, unless expressly stated otherwise in our own declaration.
(2) If the customer orders the goods, this is considered a binding offer of contract. This acceptance can also take place through the transmission of an order confirmation, the transmission of an invoice or the handover or dispatch of the ordered goods.
(3) We reserve title or copyright to any figures, drawings, calculations and other documents. This also applies to documents in text form labelled "confidential". The customer requires our express written approval before passing these on to third parties.
Art. 3 Prices - Payment terms
(1) Unless stated otherwise in the order confirmation, our prices are "ex works" (EXW), excluding packaging, freight, customs duties or other fees; the latter are invoiced separately.
(2) Statutory VAT shall be included in our prices; its statutory amount shall be shown separately on the invoice on the day of invoicing.
(3) Insofar as the agreed prices are based on our list prices and the delivery is to take place more than four months after conclusion of the contract, our list prices valid at the time of delivery shall apply.
(4) We are authorised to assign the claims arising from the business relationship, in particular our payment claims, to third parties.
(5) The deduction of a discount always requires a separate agreement in text form.
(6) To the extent that the order confirmation does not state anything to the contrary, the net purchase price (without deductions) shall become due for payment 10 days after the invoice date. The legal provisions regarding the consequences of payment default apply.
(7) In the event of default of payment by the customer, the statutory provisions shall apply, in particular default interest in the amount of 9% p.a. above the respective base interest rate p.a. shall be charged. The right to assert additional damages shall remain active.
(8) The customer shall only be entitled to set-off rights if their counterclaims have been legally asserted, are uncontested and have been accepted by us. Otherwise, they shall only be entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
Art. 4 Scope of delivery and delivery time
(1) The commencement of the delivery period stated by us shall be subject to the receipt of all information and documents required for the execution of the order, the receipt of any agreed down payments or advance payments, the timely provision of materials, if agreed, and the prior clarification of all chemical and technical questions.
Unless expressly agreed otherwise, the dispatch or delivery dates stated are only estimated dispatch or delivery dates, which may change at short notice. Such dispatch or delivery dates shall only be binding for us if they are expressly confirmed by us as binding.
(2) Compliance with the delivery obligation furthermore assumes the timely and correct performance of the customer's obligation. Should a customer fail to fulfil their payment obligations in particular, we shall be entitled to refuse performance in whole or in part until payment of the amounts due or provision of security. We reserve the right to the defence of non-performance of the contract.
(3) We are not liable if delivery is impossible or for delivery delays to the extent that these are caused by Acts of God or other events that were unforeseeable when the contract was concluded (e.g. business disruptions of any kind, difficulties in obtaining materials or energy, transport delays, strikes, legal lockouts, insufficient staff, energy or raw materials, difficulties with obtaining the necessary official permits, pandemics or epidemics, official measures failure of Suppliers to delivery, or to delivery the correct items or on time in spite of a closed congruent hedging transaction) and for which we were not responsible. If such events make delivery or performance significantly more difficult or impossible for us, and if the hindrance is not merely temporary, we are entitled to withdraw from the contract. If hindrances are only temporary, the delivery or performance deadlines are postponed or moved by the period of the hindrance plus an appropriate start-up time. If it is unreasonable for the customer to accept the delivery or performance due to the delay, he may withdraw from the contract by sending us an immediate written declaration.
(4) If the customer delays acceptance or is guilty of the violation of other participation duties, we shall be entitled to demand compensation for the damages including additional expenses suffered by us in this respect. We reserve the right to further claims and rights. For their part, the customer reserves the right to prove that no damage at all or at least significantly less damage has been incurred in the amount demanded.
(5) Insofar as the conditions of paragraph (4) are met, the risk of accidental loss or accidental deterioration of the items or products to be delivered by us - hereinafter uniformly referred to as the purchased item - shall pass to the customer at the time at which the customer is in default of acceptance or debtor's delay.
(6) We are liable according to the legal provisions to the extent that the underlying purchase agreement is a firm deal in the sense of Section 286 (2) 4 BGB or Section 376 HGB. We shall also be liable according to the legal provisions to the extent that, as a result of a delivery delay, which is our responsibility, the customer is entitled to assert that it is no longer in their interest to continue the performance of the contract.
(7) We shall further be liable according to the legal provisions to the extent that a delivery delay is due to an intentional or grossly negligent violation of the contract, if this is our responsibility. Guilt on the part of our agents or representatives shall be attributable to us. To the extent that the delivery delay is due to a grossly negligent violation of the contract, our liability for compensation shall be limited to the foreseeable, typical damages.
(8) We shall also be liable according to the legal provisions to the extent that the delivery delay is due to a violation of a material contractual duty. In such a case, our liability for compensation shall also be limited to the foreseeable, typical damages, however.
Art. 5 Transfer of risk - packaging costs
(1) To the extent that nothing to the contrary is stated in the order confirmation, delivery shall be "ex works" (EXW).
(2) Separate agreements shall apply to the return of packaging; in the absence of such agreements, the statutory provisions shall apply.
(3) If the customer requests this, we shall insure the delivery using transport insurance. The customer shall be responsible for the costs incurred in this context.
Art. 6 Liability for defects
(1) Defect claims on the part of the customer require the customer to comply with their statutory duty to inspect and notify before making a defect claim according to Section 377 HGB.
(2) In case of doubt, the agreed quality shall be determined exclusively by our binding product description. Customary and reasonable minor deviations in colour or dimensions do not constitute a defect. References to technical standards serve only to describe the service and are not to be interpreted as a guarantee of quality. Unless expressly agreed otherwise, the products shall be manufactured using materials customary in the industry and in accordance with known manufacturing processes.
(3) In the case of advice to the customer outside the contractual scope of services, liability for the functionality and suitability of the purchased item shall only exist if an express assurance has been given in advance.
(4) In the event of material defects in the delivered goods, we shall initially be obliged and entitled to repair or replace the goods at our discretion within a reasonable period of time. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.
(5) We shall be liable according to the legal provisions to the extent that the customer asserts compensation claims based on intent or gross negligence, including the intent or gross negligence of our representatives or agents. To the extent that we cannot be proven to be guilty of an intentional breach of contract, our liability for compensation shall be limited to the foreseeable, typical damages.
(6) We shall also be liable according to the legal provisions to the extent that we are guilty of a violation of a material contractual duty. In such a case, our liability for compensation shall also be limited to the foreseeable, typical damages, however. A material contractual obligation exists if the breach of duty relates to an obligation on the fulfilment of which the customer has relied and was entitled to rely.
(7) Liability due to loss of life, bodily injuries or violations of health shall not be affected. This also applies to statutory liability according to the Product Liability Act.
(8) Unless agreed otherwise, liability is excluded.
(9) The limitation period for claims for defects arising from the sale of goods is 12 months, calculated from the transfer of risk.
(10) In all cases, the special statutory provisions on reimbursement of expenses in the event of final delivery of the newly manufactured goods to a consumer (Supplier recourse pursuant to Sections 478, 445a, 445b) shall remain unaffected, unless equivalent compensation has been agreed, e.g. within the framework of a quality assurance agreement.
Art. 7 Joint and several liability
(1) Liability for compensation exceeding that specified in Art. 6 is excluded – irrespective of the legal nature of the claim being asserted. This particularly applies to compensation claims due to faults at the time that the contract was concluded, other violations of duty or tort claims regarding the compensation of material defects according to Section 823 BGB.
(2) This restriction according to Art. (1) also applies to the extent that, instead of a claim for compensation for damages, the customer demands compensation for wasted expenditure instead of performance.
(3) To the extent that liability for compensation is precluded or restricted, this also applies with regard to the personal liability for compensation of our staff, employees, workers, representatives and agents.
Art. 8 Retention of title
(1) We reserve title to the goods to be delivered by us until fulfilment of all payment claims to which we are entitled under the purchase contract and an ongoing business relationship. If the customer acts in breach of contract, especially if he delays payment, we shall be entitled to take back the item of purchase. By taking back the item of purchase, we withdraw from the contract. After taking back the item of purchase, we are entitled to make use of it. Proceeds from this utilisation shall be set off with the customer's obligations – less appropriate usage costs.
(2) We shall be entitled to assert our rights arising from the retention of title, in particular to take back the purchased item delivered under retention of title, without prior cancellation of the respective contract.
(3) The customer is obligated to treat the purchase item with care; in particular, they are obliged to sufficiently insure it at its reinstatement value against fire, water and other damages at their own expense.
(4) In the case of third-party pledges or other interventions, the customer shall inform us immediately in writing so that we may assert a claim according to Section 771 of the Code of Civil Procedure (ZPO). If the third party is not able to repay the judicial and extrajudicial costs of a claim according to Section 771 ZPO, the customer shall be liable for the costs.
(5) The customer is entitled to sell on the item of purchase in the ordinary course of business. However, they hereby transfer to us all claims amounting to the invoice total (including VAT) of our claim, which they obtain due to selling on the item to consumers or third parties, regardless of whether the item of purchase was sold without or after further processing. The customer shall be authorised to collect these claims even after the transfer. This shall not affect our right to collect the claim ourselves. We shall however not collect the claim if the customer meets their payment obligations based on the proceeds received, does not delay payment and particularly does not file an application for insolvency and/or if bankruptcy does not apply. If this is the case, however, the customer shall provide us with the details of the transferred claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the transfer.
(6) Any processing or reshaping of the item of purchase by the customer is always performed for us. To the extent that the item of purchase is processed with other items not belonging to us, we shall obtain co-ownership of the new item according to the proportion of the purchase item's value (invoice total including VAT) in relation to the other processed items at the time of the processing. In all other cases, the same shall apply to the processed item as to an item of purchase delivered subject to a retention of title.
(7) To the extent that the purchase item is processed with other items not belonging to us, we shall obtain co-ownership of the new item according to the proportion of the purchase item's value (invoice total including VAT) in relation to the other processed items at the time of the processing. If the mixing is performed so that the customer's item can be regarded as the main item, it is agreed that the customer shall transfer a proportionate co-ownership to us. The customer shall maintain sole ownership and co-ownership for us.
(8) We undertake to release the securities to which we are entitled at the customer's request to the extent that the realisable value of our securities exceeds that of the claim to be secured by more than 20%. We shall be entitled to select the securities to be released.
Art. 9 Provision of materials by the customer
(1) If materials are provided by the customer, they shall be delivered to us in good time and in perfect condition at the customer's expense and risk with an appropriate quantity surcharge of at least 5%.
(2) If the aforementioned condition is not met, our delivery time shall be extended accordingly. Except in cases of force majeure, the customer shall bear the resulting additional costs, including for interruptions to production.
(3) Incoming goods inspections for materials provided by the customer, in particular raw or basic substances or materials, shall only be carried out if commissioned separately by the customer and shall be invoiced separately by us.
(4) If materials, in particular raw or basic materials or packaging materials are provided by the customer, we shall not assume any warranty or liability for the stability and compatibility of the formulation or packaging materials.
(5) Formulations provided shall not be checked for their marketability and suitability. No liability is assumed for formulations provided.
Art. 10 Industrial property rights and defects of title
(1) If the goods to be delivered by us are manufactured according to drawings, models, samples, using parts or designs provided by the customer or recipes of the customer or other specifications, the customer shall be responsible for ensuring that the industrial property rights of third parties in the country of destination of the goods are not infringed as a result. We will inform the customer of rights known to us, but are not obliged to carry out our own research. The customer shall indemnify us against third-party claims upon first request and undertakes to compensate us for any damage incurred as a result. If we are prohibited from manufacturing or delivering by a third party with reference to an industrial property right to which it is entitled, we shall be entitled - without examining the legal situation - to cease work until the legal situation has been clarified by the customer and the third party. If we can no longer reasonably be expected to continue the order as a result of this delay, we shall be entitled to withdraw from the contract.
(2) The property rights, copyrights and, if applicable, industrial property rights, in particular all rights of use and exploitation of the models, moulds and devices, drafts and drawings designed by us or by third parties on our behalf shall not belong to the customer, but to us. Upon request, the customer shall immediately return to us the documents, records, moulds, samples or models, including any reproductions made.
(3) In the event of other defects of title, Art. 6 shall apply accordingly.
Art. 11 Jurisdiction – Place of performance
(1) To the extent that the customer is a merchant, our place of business shall be the exclusive jurisdiction. However, we are also entitled to assert claims against the customer at their place of residence.
(2) The law of the Federal Republic of Germany shall apply excluding UNCISG.
(3) To the extent that nothing to the contrary is stated in the order confirmation, our place of business shall be the place of performance.
Version: 05/2024
Reichardt Expertise für Kosmetik GmbH & Co. KG