General Terms and Conditions of FRK Health Products GmbH
§ 1 General, scope of application
1. Our General Terms and Conditions apply exclusively. Conflicting terms and conditions or terms and conditions of the customer which are divergent from the present General Terms and Conditions are not accepted unless expressly recognised by us in writing. Our General Terms and Conditions shall further apply in circumstances where we act unconditionally and in the full knowledge of conflicting terms and conditions or terms or conditions of the customer which are divergent from the present General Terms and Conditions in providing a service to a customer.
2. Our Terms and Conditions of Delivery and Payment apply only in respect of commercial entities and do not apply to private consumers. They also apply to future business transactions.
§ 2 Offer, order
1. Our offers are without engagement. All offers regarding price, quantity, delivery times and possible deliveries are non-binding. Orders and all delivery contracts do not become binding until such time as we have confirmed acceptance of the order of the designated object of purchase in writing or executed the order.
2. In the event that an order is qualified as an offer to conclude a purchase agreement, we may accept such an offer within two weeks.
§ 3 Prices and payment
1. Insofar as nothing to the contrary has been agreed in writing, our prices shall apply ex-works or ex-warehouse and not including value added tax at the relevant statutory rate. Additional costs such as freight, dispatch, customs duties, transport insurance etc. are invoiced separately.
2. Payment of the purchase price is to be made to the account of FRK Health Products GmbH exclusively. The deduction of a cash discount shall only be permissible in the event that a specific written agreement has been made to this effect.
3. Insofar as nothing to the contrary has been agreed, the purchase price shall fall due for payment within 14 days of delivery and issuing of the invoice. Penalty interest in the amount of 8% per annum above base rate shall be charged in the event of default of payment. This shall be without prejudice to the right to assert a higher claim for damages caused by a delay in payment.
4. Insofar as no fixed-price agreement has been made, we reserve the right to adjust prices accordingly to take account of changes to wage, material and distribution costs which occur 3 months or later after conclusion of contract.
§ 4 Right to set off claims and rights of retention
The customer shall only have the right to set off claims if counterclaims are established in law or are undisputed. The customer shall only be entitled to exert a right of retention to the extent that a counterclaim is based on the same contractual arrangement.
§ 5 Delivery and delivery times
1. The commencement of a delivery period stated by us is subject to the clarification of all technical issues. Delivery times/dates stated by us shall at all times be viewed as provisional and non-binding if no written agreement to the contrary has expressly been made.
2. Compliance with our duty to provide delivery requires the timely and proper fulfilment of obligations on the part of the customer. We reserve the right of defence of non-performance.
3. Partial deliveries are permissible insofar as not expressly excluded. Quantities may exceed or fall below quantities ordered by up to 10% for production reasons.
4. In the event that the customer is in default of acceptance or in culpable breach of other duties to cooperate, we are entitled to require compensation for damages suffered as well as in respect of any additional expenses which may have been incurred. This is without prejudice to the right to assert further rights or claims. Insofar as the conditions stated above apply, the risk of accidental destruction of or accidental impairment to the goods shall be transferred to the customer as soon as the customer is in default of acceptance or in default of payment.
5. In the event that the customer is in default of acceptance of goods or fails to call up goods within an agreed or appropriate deadline, we shall, following the expiry without fulfilment of an appropriate subsequent deadline set by us, be entitled to act at our own discretion in charging the customer for goods and delivering such goods without being requested to do so or in storing goods at the expense of the customer. This is without prejudice to the right to assert further rights or claims.
§ 6 Obligations of the customer
The customer is solely and exclusively responsible for compliance with and adherence to all statutory provisions and ordinances, in particular the German Pharmaceutical Products Act, the German Foodstuffs, Consumer Goods and Feedstuffs Code and all relevant EU Directives, and is further solely and exclusively responsible for compliance with and adherence to all resultant requirements regarding the goods ordered by the customer. In this regard, the customer has strict liability for providing a guarantee for the correctness and completeness of information provided by the customer for the goods to be supplied, e.g. declarations, labels, layout, texts etc.
§ 7 Warranty
1. Any warranty claims asserted by the Customer are subject to proper fulfilment of obligations incumbent on the Customer to examine goods and provide notification of defects pursuant to § 377 German Commercial Code (HGB).
2. In the event that despite the exercise of all due care and attention goods delivered exhibit a defect which was already present at the time when transfer of risk took place, we shall, providing that notification of defect has been made in a timely manner, choose whether to remedy such a defect or deliver a replacement. We shall always be accorded the opportunity to provide subsequent performance within an appropriate deadline.
3. In the event that the customer acts with intent or in a negligent manner in failing to recognise that goods are not actually defective or that the defect arising cannot be ascribed to our area of responsibility and notwithstanding this asserts warranty rights, the customer shall be required to reimburse us for costs incurred as a result of an unjustified demand for remedy of defect.
4. Claims for defects by the customer lapse 1 year after delivery of goods. The associated limitation periods do not apply to the extent that we are liable pursuant to § 8 below of the present General Terms and Conditions or in the event that rights in rem of a third party are involved on the basis of which surrender of the object of delivery may be required.
5. The provisions set out in § 7 Clause 1 to 4 above of the present General Terms and Conditions are without prejudice to the recourse claims of commercial entities pursuant to §§ 478, 479 German Civil Code (BGB).
§ 8 Liability
1. We will be liable to an unlimited extent in accordance with the statutory provisions for damages to life, limb and health caused by an intentional or grossly negligent breach of contractual duty and for other damages caused by intentional or grossly negligent breaches of contract or by acts of bad faith. We will further be liable to an unlimited extent for damages covered by liability pursuant to a peremptory norm such as the Product Liability Act and in the case of acceptance of guarantees.
2. We shall only be liable for damages not encompassed by § 8 Clause 1 above and caused by simple or ordinary negligence to the extent that such negligence relates to the breach of contractual duties required to be fulfilled for the proper execution of the contract and duties which the customer may ordinarily rely upon to be fulfilled (so-called cardinal or material contractual duties). In such a case, our liability shall be limited to the foreseeable damages typical to the sort of contract.
3. Liability on our part is excluded in the case of ordinary negligence of contractual duties not encompassed by § 8 Clause 1 or by § 8 Clause 2 above (so-called immaterial contractual duties).
4. Further liability is excluded.
§ 9 Retention of title
1. We reserve the right of retention of title in respect of goods delivered (goods subject to reserved proprietary rights) until such time as all claims arising from the delivery contract have been paid in full.
2. We shall be entitled to take goods back should the customer act in a manner contrary to the present Agreement, e.g. by being in default of payment. We shall be entitled to dispose of goods taken back. The proceeds of any such disposal shall, minus any reasonable costs of disposal, be credited towards the remaining liabilities of the customer.
3. Insofar as proprietary rights have not yet been transferred to the ordering party, the ordering party shall treat goods with due care. The customer shall in particular required bear the cost of to taking out sufficient insurance at to cover goods to their replacement value against theft, fire damage and water damage.
4. Insofar as proprietary rights have not yet been transferred, the customer shall notify us in writing without delay should the article delivered be subject to distraint or other third party attachment. Insofar as such a third party is not in a position to compensate us for costs incurred in bringing court or out-of-court action pursuant to § 771 German Civil Code Procedure (ZPO), the customer will be liable for any loss we may incur.
5. The customer shall be entitled to resell goods subject to reserved proprietary rights in the normal course of business. The customer assigns to us with immediate effect and to the full amount of the final invoice amount agreed (including VAT) any customer claims arising as a result of onward sale of the goods subject to reserved proprietary rights. Such an assignment takes place irrespective of whether goods have been further processed prior to resale. The customer shall remain entitled to collect claims even after such an assignment has taken place. This shall be without prejudice to our own entitlement to collect such a claim ourselves. Notwithstanding this, we shall not collect such a claim insofar as the customer meets payment obligations from the proceeds received, insofar as the customer is not in default of payment and particularly insofar as no application has been made for the instigation of insolvency proceedings or cessation of payment has not taken place. If any of the above such be the case, we shall be entitled to require the customer to disclose claims ceded and the relevant debtors, to provide all necessary information for the collection of claims, to release the required documentation and to notify the debtors (third party) of the assignment.
6. Any processing or transformation of goods subject to reserved proprietary rights takes place on our behalf at all times. Insofar as goods subject to reserved proprietary rights are processed together with other objects not belonging to us, we will acquire co-ownership in the value of the new item (final invoice amount including Value Added Tax) in the ratio of the objective value of our goods compared to other objects processed at the time such processing took place. The same otherwise applies to the new item created by such processing as to goods subject to reserved proprietary rights conditionally delivered.
7. Insofar as goods subject to reserved proprietary rights are inseparably mixed together with other objects not belonging to us, we will acquire co-ownership in the value of the new item (final invoice amount including Value Added Tax) in the ratio of the objective value of our goods compared to other objects mixed at the time such mixing took place. Insofar as mixing takes place in such a way so that the item of the customer is to be viewed as the main item, it is agreed that the customer will transfer co-ownership to us proportionately. The customer will keep the sole ownership or co-ownership thus acquired in safe custody on our behalf.
8. For the purpose of securing our claims against the customer, the customer assigns to us any claims which the customer may acquire against a third party by the combination of goods subject to reserved proprietary rights with real estate. The prerequisites for authorisation to make collection are set out in Clause 5 above.
9. We commit to release collateral due to us at the request of the customer to the extent that the realisable value of such collateral exceeds the claims to be secured by more than 10 percent. We are entitled to select collateral to be released.
§ 10 Final provisions
1. The present General Terms and Conditions and all legal relations between us and the customer are governed by the Law of the Federal Republic of Germany. The provisions contained within the UN Convention on Contracts for the International Sale of Goods shall not apply.
2. Insofar as the customer is a Registered Trader under German Law, place of jurisdiction for all disputes arising from the present Agreement shall be Winterberg. Notwithstanding this, we shall also be entitled to instigate legal action at a court in another jurisdiction.
3. In the event that individual provisions contained within the present Agreement shall be or shall become invalid or in the event that there is a gap in provision, this shall be without prejudice to the other provisions herein contained.