Eberhard Faber Vertrieb GmbH General Terms of Sale and Delivery
These General Terms of Sale and Delivery
1. Scope, Form
1.1. These General Terms and Conditions of Sale and Delivery ("GTC") shall apply to contracts with our customers, provided that these are entrepreneurs within the meaning of Section 14 BGB (German Civil Code), legal entities under public law or a special fund under public law ("Customers"). Our offer is directed exclusively to these customers.
1.2. The GTC shall apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTC apply in the valid version at the time of the order of the Customer or in any case in the version last notified to it in writing as a framework agreement, including for similar future contracts, without us having to make reference thereto again in each individual case.
1.3. These GTC apply exclusively to our deliveries and services. Deviating, conflicting or supplementary general terms and conditions of the Customer shall not apply unless we have expressly agreed to these terms in the individual case. This requirement of consent shall apply in any case, for example even if we make a delivery to the Customer without reservation or accept payments from the customer in awareness of the Customer's GTC.
1.4. Legally relevant declarations and notifications by the Customer with regard to the contract (e.g., the setting of deadlines, notification of defects, withdrawal or price reduction) must be made in writing, i.e., in written or text form (e.g., letter, e-mail, fax). Any statutory form requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
1.5. References to the applicability of statutory provisions are made for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2. Offers and Conclusion of Contract
2.1. Our offers are always non-binding.
2.2. An order placed by a Customer shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we shall be entitled to accept this offer to enter into a contract within five (5) days from receipt.
2.3. Acceptance can either be expressly declared (in writing or in text form, e.g., by an order confirmation) or implied, e.g., by delivery of the Goods or provision of a service.
2.4. We shall be entitled to change our Goods and services at any time with effect for the future; we are not required to make such changes to Goods or services already ordered or delivered or provided.
3.1. Unless otherwise agreed in an individual case or stipulated in these GTC, the prices in our price list valid at the time this contract is concluded shall apply, i.e., EXW (ex works) from the delivering warehouse that was agreed upon (Incoterms 2020) and plus statutory VAT.
3.2. Notwithstanding clause 3.1, deliveries within Germany and deliveries from Germany to Luxembourg or Austria DAP shall be made to the Customer's address as agreed upon (Incoterms 2020). If the net value of the order exceeds EUR 300.00, shipping is free. If the net value of the order is less than EUR 300.00, we charge the actual shipping costs incurred. For orders with a net value of less than EUR 150.00, we charge a net premium of EUR 7,50 in addition to the actual shipping costs. Any additional costs incurred for a type of shipment requested by the Customer (e.g., express shipping, express package, scheduled delivery, etc.) must be borne by the Customer.
3.3. Discounts are only granted if and to the extent that they were agreed upon between us and the Customer at least in text form. We reserve the right to demand the return of any discounts granted, if the Customer does not meet the conditions agreed upon with regard to the discount.
4. Delivery Dates and Periods, Delays in Delivery
4.1. Delivery dates or delivery periods are always non-binding and approximate unless we have expressly specified them as binding.
4.2. Compliance with binding delivery dates or periods shall be subject to the condition that the Customer has fulfilled all of its obligations, such as special acts of cooperation, provision of materials or down payments. If this is not the case, the delivery dates or delivery periods shall be extended accordingly. This shall also apply to changes to the scope of delivery that become necessary or are requested by the Customer after the order placement.
4.3. The occurrence of our delay in delivery shall be governed by the statutory provisions. In any case, a reminder of the Customer is necessary.
4.4. The provisions set out in clauses 9 and 10 of these GTC and our statutory rights, particularly in the event of an exclusion of our performance obligation (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.
4.5. The above provisions of this clause 4 shall apply mutatis mutandis to the provision of services.
5. Delivery, Transfer of Risk, Default of Acceptance, Packaging
5.1. Unless otherwise agreed between us and the Customer in individual cases or otherwise provided for in these GTC (cf. clause 3.2), delivery and the transfer of risk shall be made EXW (ex works) to the agreed delivering warehouse (Incoterms 2020), which shall also be the place of performance for the delivery and any subsequent performance.
5.2. At the request and expense of the Customer, the Goods can be sent to another destination (delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping, packaging).
5.3. In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss or accidental deterioration of the Goods as well as the risk of delay shall pass upon the delivery of the Goods to the forwarding agent, the carrier or any other person or entity designated to carry out the shipment. If the Customer is in default of acceptance, it is equivalent to a handover.
5.4. If the customer is in default of acceptance or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of EUR 50.00 plus EUR 30.00 per Europallet or part thereof and per week or part thereof, starting with the delivery date or - in the absence of a delivery date - with the notification that the Goods are ready for shipment. The option to substantiate higher damages and to assert our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; the lump sum shall, however, be credited against further monetary claims. The Customer shall be entitled to prove that no damages or only significantly less damages than the aforementioned lump sum has been incurred.
5.5. If an order deviates from our packaging units, we shall be entitled to increase the order quantity to the next higher packaging unit without providing a special notification. Such an increase shall only be possible if the net value of the Goods on which the increase is based does not exceed the net value of the Goods of the order in question by more than 10%.
5.6. We are entitled at any time to make partial deliveries or short deliveries to a reasonable extent.
5.7. As a distributor of packaging within the meaning of Section 15 (1) sentence 1 VerpackG (German Packaging Act), we are required pursuant to Section 15 (1) sentence 1 VerpackG to take back free of charge any used, completely empty packaging of the same type, shape and size as the packaging we put into circulation at the place of actual transfer or in the immediate vicinity thereof in order to reuse said packaging or to recycle it properly and professionally.
6. Terms of payment, right of Set-off and Retention
6.1. Unless otherwise agreed between us and the Customer at least in text form, our invoices shall be due for payment within eight (8) days with two percent (2%) discount or within thirty (30) days from the date of invoice and delivery without deduction. We are, however, entitled, including as part of an ongoing business relationship, to only carry out a delivery against advance payment at any time in whole or in part. We shall declare a corresponding retention at the latest with the order confirmation. In the case of partial deliveries, we expressly reserve the right to invoice on a prorated basis.
6.2. If the payment deadline is exceeded, the Customer shall be in default without a reminder. The purchase price shall bear interest during the default at the respectively applicable statutory default interest rate. The assertion of higher damages caused by a delay and/or the assertion of the statutory lump sum pursuant to Section 288 (5) BGB as well as the commercial due date interest (Section 353 HGB (German Commercial Code)) shall remain unaffected.
6.3. The Customer shall only be entitled to set-off or retention rights insofar as its claim is legally established or undisputed. In the event of defective Goods, the Customer's rights under these GTC, in particular under clause 7.7, sentence 4, shall remain unaffected.
7.1. Unless otherwise provided below, the statutory provisions governing the rights of the Customer relating to material defects and defects of title shall apply. This shall not affect the special statutory provisions governing a final delivery of the Goods to a consumer (supplier recourse pursuant to Sections 445a, 445b, 478, BGB).
7.2. The basis of our liability for defects is primarily the agreements reached on the quality of the goods.
7.3. Insofar as the quality has not been agreed upon, the question of whether or not there is a defect shall be governed by the statutory provisions (Section 434 BGB). We assume no liability for public statements by third parties (e.g., advertising statements) which the Customer did not reference as being decisive for the Customer's purchase. The Goods comply (in particular with regard to labeling, notification obligations and packaging) with the legal requirements in Germany. Compliance with any deviating statutory provisions abroad shall be the Customer's responsibility.
7.4. A defect of title shall exist if the Goods infringe third party rights within the EEA; no defect of title shall exist if the Goods infringe third party rights outside the EEA.
7.5. The Customer shall not be entitled to claims for defects in the case of natural wear and tear, deterioration after the transfer of risk as a result of an improper use of the goods, excessive stress, the use of unsuitable operating materials or accessories (such as refills, inks, ink cartridges) or improper storage.
7.6. The Customer shall inspect the delivered Goods immediately upon receipt and notify us in writing - if necessary in advance by fax - of any defects that are obvious or that can be detected upon proper inspection within three (3) days of receipt of the Goods and before passing them on to third parties. The Customer must additionally document any obvious transport defects on the delivery documents. The Customer must report any defects that are not obvious or that are not recognizable upon proper inspection in writing within three (3) days of their discovery. If the customer fails to duly inspect and/or to report defects or to note obvious transport defects on the delivery documents in a timely manner, we shall not be liable for any defect that was not duly reported or not in a timely manner.
7.7. In the event of justified defects, we shall be entitled, at our discretion, to repair the Goods recognized by us as defective or to deliver Goods that are free of defects. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected. We are entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the Customer is entitled to retain a reasonable portion of the purchase price relative to the defect.
7.8. The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected Goods for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective item to us in accordance with the statutory provisions. Any subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install said item.
7.9. If a defect is actually present, we shall bear or reimburse the expenses necessary for the purpose of an inspection and subsequent performance, in particular for the transport, travel, labor and material costs and, if applicable, the removal and installation costs, in accordance with the statutory provisions. In all other cases we may require the Customer to reimburse us for the costs incurred due to the unjustified remediation request of defects (in particular testing and transport costs), unless the Buyer was unable to detect the lack of defects.
7.10. If the supplementary performance has failed or if a reasonable period to be set by the Customer for the supplementary performance has expired unsuccessfully or if it is dispensable according to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.
7.11. The Customer's claims for damages or compensation for wasted expenses exist even for defects only in accordance with clause 9 and are otherwise excluded.
8. Retention of Title
8.1. We shall retain the title to the Goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) are paid in full.
8.2. The Goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims are paid in full. The Customer shall notify us immediately in writing if an application for the opening of insolvency proceedings has been filed or if third parties have access to the Goods belonging to us (e.g., seizures).
8.3. In the event of a breach of contract by the Customer, in particular in the event the purchase price due is not paid, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the Goods on the basis of the retention of title. The demand for surrender does not simultaneously mean a declaration of withdrawal; rather, we are entitled to reclaim the goods and reserve the right to withdraw. If the Buyer fails to pay the purchase price due, we may assert these rights only if we have previously unsuccessfully extended a reasonable period to the Buyer for payment or such a deadline is dispensable according to the statutory provisions.
8.4. Subject to a revocation in accordance with subsection c) sentence 4, the Customer shall be entitled to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply as well.
a) The retention of title shall extend in full to the products resulting from the processing, mixing or combining of our Goods, in connection with which we shall be deemed to be the manufacturer. If, in the event of a processing, mixing or combining, third parties retain their title to the good, we shall acquire co-ownership in proportion to the amounts invoiced for the processed, mixed or combined goods. In all other respects, the same shall apply to the product created in this manner as to the goods delivered under retention of title.
b) In accordance with the preceding paragraph, the Customer hereby assigns to us by way of security any claims against third parties arising from the resale of the Goods or the product in their entirety or in the amount of our co-ownership, if applicable. We hereby accept the assignment. The Customer's obligations set forth in clause 8.2 above shall likewise apply to the assigned claims.
c) The Customer remains authorized to collect the claim as well. We undertake not to collect the claim as long as the Customer meets its payment obligations towards us, its ability to perform is not impaired and we do not assert the retention of title by exercising a right according to clause 8.3. above. If this is the case, however, we may demand that the Customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors in question (third parties) of the assignment. In this case we shall also be entitled to revoke the Customer's authority to further sell and process the Goods subject to retention of title.
8.5. If the realizable value of the security exceeds our claims by more than ten percent (10%), we shall release part of the security at our discretion and at the Customer's request.
9.1. Insofar as nothing to the contrary arises from these GTC, we shall be liable in accordance with the statutory provisions.
9.2. We are liable for damages in the event of intent or gross negligence regardless of the legal grounds. In cases of simple negligence, we are liable, subject to a milder liability standard according to the statutory provisions (e.g., for care in own affairs), only
a) for damages resulting from injury to life, limb or health,
b) for damages resulting from the significant breach of a material contractual obligation (an obligation whose fulfillment enables the proper performance of this contract in the first place, and upon the fulfillment of which the contracting party regularly relies and may rely); in this case, our liability is limited to compensation for the foreseeable, typically occurring damage.
9.3. The limitations of liability resulting from clause 9.2 also apply to breaches of duty by persons whose negligence we are liable for in accordance with the statutory provisions. It shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the Goods or to claims by the Customer under the German Product Liability Act.
9.4. Due to a breach of duty that does not consist of a defect, the Customer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A right of termination at the Customer's discretion (in particular pursuant to Sections 650, 648 BGB) is excluded. In other respects, the statutory requirements and legal consequences shall apply.
9.5. The Customer is responsible for the materials, order components or processing instructions provided by the Customer. We are not required to check these for compliance with the applicable legal standards or for any infringements of third-party rights. Furthermore, the customer shall be responsible for ensuring that, in the case of custom-made products, the labeling of the Goods requested by the Customer does not infringe the rights of third parties or violate statutory regulations. In such cases, the Customer shall be fully liable and shall indemnify and hold us harmless in full against all third-party claims at the time the claim is asserted.
9.6. We do not accept any contractual penalties from Customer.
10. Statute of Limitations
10.1. Notwithstanding Section 438 (1) no. 3 BGB, the general statute of limitations for claims from material and legal defects shall be one year from the delivery of the Goods.
10.2. If the Goods are a building structure or an item that has been used for a building structure in accordance with its customary use and has caused said structure to become defective (building material), the limitation period shall be five years from delivery in accordance with the statutory provision (Section 438 (1) no. 2 BGB). Any further statutory provisions on the statute of limitations (in particular Section 438 (1) no. 1 and (3) as well as Sections 444, 445b BGB) shall remain unaffected as well.
10.3. The above limitation periods shall also apply to any contractual and non-contractual claims for damages of the Customer based on a defect of the Goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the Customer in accordance with clause 9.2, sentence 1 and sentence 2 a) as well as pursuant to the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
11. Force Majeure
11.1. In the following, the term "force majeure" shall refer to an external event caused by elementary forces of nature or by the actions of third parties, which is unforeseeable according to human insight or experience, which cannot be prevented or rendered harmless by economically acceptable means even with the utmost care that can reasonably be expected under the circumstances, and which was not to be accepted by us due to its frequency. Force majeure may exist, for example, in the event of natural disasters, pandemics (such as Sars-CoV-2), epidemics, floods, fire, explosion, war, riots, terrorism, civil commotion, strike, lockout, general shortage of energy and raw materials, failure of public utility service, an unforeseeable blockage of transport routes, or orders by law or by competent authorities.
11.2. We are not liable for damages for which we are not responsible (e.g., in case of force majeure).
11.3. If we are unable to meet bindingly agreed delivery periods for reasons for which we are not responsible ("non-availability of performance"), the bindingly agreed delivery dates shall be extended by the duration of the impairment. We will immediately inform the Customer of the cause and the effects of the force majeure and, at the same time, notify the Customer of the expected new delivery period. If delivery is not possible within the new delivery period either, we are entitled to withdraw from the contract in whole or in part; we will refund any consideration already paid by the Customer without undue delay. In particular, (i) cases of force majeure, (ii) a late self-delivery by our supplier if we have concluded a congruent hedging transaction, (iii) if neither we nor our supplier are at fault or (iv) we do not have a procurement obligation in the individual case shall be deemed to be a case of non-availability of performance.
12. Media Data
12.1. If we provide the Customer with data, in particular pictures, texts, tables, graphics, technical drawings, film works, video spots or information embodied in any other way about the Goods sold by us ("Media Data") for sales purposes, the provisions set out in this clause shall apply. These shall also apply if we grant the Customer access to our media center.
12.2. The Customer may only use the Media Data for the duration of the supply relationship and only for marketing our Goods within the scope of the Customer's business activities. This includes the right to use the Media Data for printing catalogs and other advertising materials, for the company's own website, in its own online store and in newsletters. The use of Media Data on TV, sales platforms such as eBay and Amazon (including in the company's own store), on social media channels or in any other form is prohibited.
12.3. The simple right of use granted in clause 12.2. may be revoked at any time.
12.4. The Customer is not permitted to disclose the Media Data to third parties, including representatives of the press.
12.5. The Customer is not permitted to change or edit the Media Date or to use excerpts thereof. However, the technical processing of images and videos for optimization purposes is permitted, provided that this does not alter their essential content.
12.6. We shall be liable for damages resulting from the incorrectness of the Media Data or from the infringement of third-party rights by the Media Data within the scope of the liability limitation specified in clause 9. We also do not guarantee that the Media Data meets the Customer's requirements and purposes.
12.7. The Customer warrants not to use the Media Data in connection with activities (in particular advertising, statements, declarations, etc.) that violate legal provisions or that are associated with narcotics as defined by the law, with political, religious, pseudo-religious, racist, violent or war-glorifying content or in connection with content that is contrary to public decency and/or that is likely to damage our image and reputation. Furthermore, the Customer shall comply with the legal regulations and guidelines when using the Media Data.
13. Changes to the Products, Withdrawal due to Failure to Perform
13.1. Any change to the configuration of our Goods and any type of repackaging, such as blistering, requires our express consent.
13.2. If, after the conclusion of the contract, it becomes apparent (e.g., because insolvency proceedings are opened) that our claim to the purchase price is jeopardized by the Customer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and to withdraw from the contract, if necessary after having set a deadline (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (unique products), we may declare a withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
14.1. The customer shall use confidential information received from us on the occasion of the supply relationship exclusively for the purpose of carrying out the agreed cooperation with us. The Customer must maintain confidentiality with regard to third parties about our confidential information that the Customer has become privy to. The Customer shall only pass on the confidential information to its own employees to the extent that this is absolutely necessary for the performance of the contract and the employees are likewise obligated to maintain confidentiality. The obligation to maintain confidentiality shall continue to apply after the termination of the business relationship with us.
14.2. Confidential information is information that has commercial value because it is confidential and subject to reasonable confidentiality measures.
14.3. Information that (i) was generally known at the time of disclosure, (ii) was obtained with an independent discovery by Customer, (iii) was received from a third party on a non-confidential basis, but only to the extent the Customer has no knowledge or grossly negligent lack of knowledge of a breach of a confidentiality obligation, (iv) the Customer must disclose due to mandatory legal or regulatory requirements, provided that we were promptly notified in writing thereof, except where prohibited by law; or (v) otherwise obtained by Customer in a manner consistent with fair business practices under the circumstances shall not be considered confidential information. The Customer must provide evidence for these exceptions, as well as for the fact that our proven confidentiality measures can be circumvented and are therefore inadequate.
15. Applicable Law, Place of Jurisdiction
15.1. These GTC and the contractual relationship between us and the Customer shall be governed exclusively by German law, to the exclusion of all provisions of private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
15.2. If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between us and the Customer shall be Nuremberg, Germany. We shall, however, also be entitled to bring an action at the place of performance of the delivery obligation or at the Customer's general place of jurisdiction. Overriding statutory provisions, especially concerning exclusive jurisdiction, shall remain unaffected.