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Terms & Condi­tions

General Terms and Condi­tions of Sale and Delivery of SBLC Sustainable Consumer Goods GmbH, Josef Wechsel­berger Weg 16, 82140 Olching, Germany

 

I. General, Scope

(1) These General Terms and Condi­tions of Sale and Delivery (herein­after “GTCSD”) apply to all our business relati­onships with our customers in which we are the seller or supplier. The GTCSD only apply if, upon conclusion of the contract, the Customer becomes engaged in commercial or self-employed profes­sional activities (so-called entre­pre­neurs) or is a legal person under public law or a special fund under public law.

(2) Unless otherwise agreed, the GTCSD in the version valid at the time of the Customer’s order or, in any case, in the last written version provided to it, shall also apply as a framework agreement for future transac­tions with the same Customer without our having to refer to them again in each individual case.

(3) Our GTCSD shall apply exclu­sively. Any condi­tions of the Customer which are conflicting or contra­dictory or not contained in our GTCSD shall only become part of the contract insofar as we have expressly agreed to their validity. This consent requi­rement shall apply without exception, for example, even if we accept the Customer’s deliveries without reser­vation in knowledge of the Customer’s GTCSD.

(4) Individual agree­ments concluded with the Customer in individual cases (including ancillary agree­ments, supple­ments and amend­ments) shall take prece­dence over these GTCSD in all cases. Subject to proof to the contrary, a written contract or our written confir­mation shall prevail over the content of any such agree­ments.

(5) Legally relevant decla­ra­tions and notifi­ca­tions relating to the contract (e.g. deadlines, reminders, withdrawal or reduction) shall be provided by the Customer in writing, i.e. in written or in text form (e.g. letter, email). Formal statutory requi­re­ments and additional evidence, in parti­cular if there is any doubt about the legitimacy of the declarant, shall remain unaffected.

(6) References to the appli­ca­bility of statutory provi­sions shall be for clari­fi­cation purposes only. Therefore, even without such clari­fi­cation, the statutory provi­sions shall apply unless they are directly amended or expressly excluded in these GTCSD.

 

II. Offer documents, scope of delivery

(1) Our offers are subject to change without notice and with no obligation. This also applies if we provide the Customer with drawings, product designa­tions, catalogues, adver­tising material, samples, cost estimates and other documents – including electronic documents – in which we reserve all proprietary rights, copyrights and indus­trial property rights (including the right to register these rights).

(2) The Customer’s order of the goods is considered a binding offer. Unless otherwise stated in the order, we shall be entitled to accept this contract offer within 14 days of receipt. Accep­tance can be declared either in writing or in text form (e.g. by order confir­mation) or by delivery of the goods to the Customer.

(3) The scope of the delivery shall be deter­mined based on our order confir­mation, in writing or in text form. In the event of an offer on our part designated as binding and its accep­tance in good time, the offer shall prevail.

 

III. Delivery, place of perfor­mance, passing of risk

(1) Delivery shall be made EXW Incoterms 2020 in Munich, Germany, which is also the place of perfor­mance.

(2) At the request and expense of the Customer, the goods shall be dispatched to another desti­nation (sale by delivery to a desti­nation requested by the buyer other than the place of perfor­mance). Unless otherwise agreed, we shall be entitled to determine the type of shipping (speci­fi­cally, transport companies, shipping route, packaging) within a reasonable scope for the Customer.

(3) The risk of accidental loss and accidental deterio­ration of the goods shall be pass to the Customer at the latest when they are handed over. However, for a sale by delivery to a desti­nation requested by the buyer other than the place of perfor­mance, the risk of accidental loss and accidental deterio­ration of the goods as well as the risk of delay shall pass as soon as the goods are delivered to the forwarder, the carrier or any other person or insti­tution designated to carry out the shipping.

(4) Insofar as an accep­tance has been agreed, it shall be the basis for deter­mining the passing of risk. The handover or accep­tance shall be the same if the Customer is in default of accep­tance.

(5) If the Customer is in default of accep­tance, fails to act coope­ra­tively, 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 damages, including additional expenses (e.g. storage costs).

 

IV. Delivery period and delay in delivery

(1) The delivery period shall be indivi­dually agreed or specified by us once the order has been accepted. Otherwise, the delivery period shall be appro­xi­m­ately 12 weeks from the conclusion of the contract.

(2) If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availa­bility of the service), we will inform the Customer of this circum­s­tance immediately and at the same time indicate an antici­pated new delivery period to the Customer. If the service is not available even within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we will immediately refund any conside­ration already provided by the Customer. In parti­cular, the service shall be deemed to be non-available in the event of late delivery by our supplier if we have concluded a congruent hedging transaction and neither our supplier nor we are at fault or we are not required to procure perfor­mance in individual cases.

(3) The commencement of our delay in delivery shall be deter­mined by the statutory provi­sions. In all cases, however, a reminder shall be required by the Customer. If we are in default of delivery, the Customer can demand lump sum compen­sation for any damages caused by the delay. For each completed calendar week of delay, the compen­sation for damages shall amount to 0.25% of the net price (delivery value), but in total no more than 5% of the delivery value of the goods delivered with a delay. We reserve the right to prove that no damage at all or only damage at a signi­fi­cantly lower value than the above lump sum has been incurred to the Customer.

(4) The Customer’s rights according to VIII of these GTCSD and our statutory rights, in parti­cular under exclusion of the duty to perform (e.g. impos­si­bility or non-feasi­bility of perfor­mance and/or subse­quent perfor­mance), remain unaffected.

 

V. Prices and terms of payment

(1) The prices stated in the offer and/or order confir­mation are valid as of EXW Incoterms 2020 Munich, Germany, excluding freight, packaging and insurance plus VAT in the respective statutory amount.

(2) The purchase price is due and payable without deduc­tions within 14 days of invoicing and delivery or accep­tance of the goods. However, we are also entitled at any time within the framework of an ongoing business relati­onship to carry out a delivery in whole or in part only against payment in advance. We shall declare a reser­vation to this end at the latest when confirming the order.

(3) The Customer shall be in default once the above payment period has expired. During the delay, interest shall be calcu­lated on the purchase price at the appli­cable statutory interest rate. We reserve the right to claim further damages caused by the default. Our right to claim commercial default interest with respect to merchants (Section 353 of the German Commercial Code – HGB) remains unaffected.

(4) The Customer is entitled to set-off or retention rights only with undis­puted or legally estab­lished claims and with counter­claims based on the same legal relati­onship. In the event of defects in the delivery, section VII paragraph 6 remains unaffected.

 

VI. Retention of title

(1) We reserve our title of the goods sold (reserved goods) until all of our current and future claims from the sales contract and an ongoing business relati­onship (secured claims) are paid in full.

(2) The reserved goods may neither be pledged to third parties nor trans­ferred for security until the secured claims are paid in full. The Customer must notify us immediately in writing or in text form if an appli­cation for the opening of insol­vency procee­dings is filed or if third parties have accessed the reserved goods.

(3) In the event of a breach of contract by the Customer, in parti­cular in the event of non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provi­sions and to demand the goods on the basis of retention of title and withdrawal.

(4) The Customer is autho­rised to resell and/or process the goods subject to retention of title in the normal course of business. In this case, the following provi­sions shall apply in addition.

(a) The processing or trans­for­mation of the reserved goods by the Customer shall be carried out for us as the manufac­turer. If the goods subject to retention of title are processed, insepa­rably combined or mixed with other goods not belonging to us, we shall acquire joint ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including sales tax) to the other processed, combined or mixed items at the time of processing, combi­nation or mixing. If the goods subject to retention of title are processed, combined or mixed in such a way that the Customer’s goods are to be considered as the main item, the Customer and we hereby agree that the Customer transfers joint ownership of this item to us on a pro rata basis. We shall accept this transfer.

(b) The Customer hereby assigns to us by way of security all claims arising from the resale of the goods subject to retention of title or the product as well as those claims of the Customer with regard to the goods subject to retention of title which arise from any other legal reason against its customers or third parties (in parti­cular claims arising from tort and claims from insurance benefits) or – if we are only entitled to a joint ownership share in the goods – in the amount of our possible joint ownership share in accordance with the above paragraph. We shall accept the assignment. The obliga­tions of the Customer referred to in paragraph 2 shall also apply in view of the assigned claims.

© The Customer shall remain autho­rised to collect the claim in addition to us. We undertake not to collect the claim as long as the Customer meets its payment obliga­tions towards us, is not in default of payment, no appli­cation for the opening of insol­vency procee­dings has been filed and its ability to pay is not otherwise impaired. If this is the case, however, we may require the Customer to inform us of the assigned claims and their debtors, provide all infor­mation necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.

(5) If the reali­sable value of the securities exceeds our claims by more than 10%, we shall release securities of our choosing at the Custo­mer’s request.

(6) In the absence of a retention of title according to the preceding regula­tions at the place of desti­nation of the delivery, the purchaser shall provide us with another functionally equivalent means of security (e.g. letter of credit or bank guarantee).

 

VII. Claims for defects of the Customer

(1) The statutory provi­sions shall apply to the rights of the Customer in the event of defects in quality and title, unless otherwise specified in the following. In all cases, the special statutory regula­tions remain unaffected when the goods are delivered to a consumer (supplier recourse).

(2) The basis of our liability for defects is above all the agreement reached on the condition of the goods. The product descrip­tions (including those of the manufac­turer), which were provided to the Customer before its order or were included in the contract in the same way as these GTCSD, are considered as an agreement on the condition of the goods.

(3) Insofar as the condition has not been agreed, an assessment shall be made according to the legal regula­tions as to whether a defect exists or not. However, we do not assume any liability for public state­ments made by the manufac­turer or other third parties (e.g. adver­tising messages), which the Customer has not indicated to us as having influenced its purchase.

(4) The assertion of claims for defects presup­poses that the Customer has complied with its statutory duties to inspect and give notice of defects. The goods must be inspected immediately by the Customer. If a defect becomes apparent during the inspection or later, we shall immediately be informed of this in writing, otherwise the goods shall be deemed to have been approved. Compliance with the deadline shall be achieved if the notice is sent on time.

(5) If the delivered item is defective, the Customer may first request a repair of the defect (recti­fi­cation) or delivery of a defect-free item (repla­cement) at our discretion. If the subse­quent perfor­mance has failed or a reasonable time period to be set by the Customer for subse­quent perfor­mance has expired without success or is dispensable according to the statutory regula­tions, the Customer may withdraw from the sales contract or reduce the purchase price. However, in the event of a minor defect, there is no right of withdrawal.

(6) We are entitled to make the subse­quent perfor­mance owed condi­tional on the payment of the purchase price due by the Customer. However, the Customer is entitled to retain a reasonable part of the purchase price in proportion to the defect.

(7) The Customer must give us the time and oppor­tunity necessary for the subse­quent perfor­mance owed, in parti­cular, in order to submit the goods in question for testing. If a repla­cement delivery is made, the Customer must return the defective item to us in accordance with the legal regula­tions. The subse­quent perfor­mance does not include the removal of the defective item or re-instal­lation if we were not origi­nally required to install it.

(8) We shall bear or reimburse the expenses required for the testing and subse­quent perfor­mance, in parti­cular for transport, travel, labour and material costs and, if appli­cable, instal­lation and removal costs in accordance with the statutory provi­sions, if a defect is actually found to exist. Otherwise, we may demand from the Customer the costs incurred as a result of the unaut­ho­rised request for the repair of defects (speci­fi­cally, testing and transport costs), unless the lack of defec­ti­veness was not recog­nisable to the Customer.

(9) Claims asserted by the Customer for damages or reimbur­sement of futile expenses shall only exist in accordance with section VII. and are otherwise excluded.

 

VIII. Other liability

(1) Unless otherwise specified in these GTCSD, including the following provi­sions, we shall be liable in the event of a breach of contractual and non-contractual obliga­tions in accordance with the relevant statutory provi­sions.

(2) We shall be liable for damages – regardless of the legal basis – in case of intent and gross negli­gence. In cases of simple negli­gence, we shall only be liable subject to statutory limita­tions of liability (e.g. due diligence in our own affairs; insigni­ficant breach of duty) (a) for damages resulting from injury to life, body or health, (b) for damages resulting from the breach of a cardinal obligation (a contractual obligation which must be fulfilled in order to enable the proper execution of the contract and on whose compliance the contractual partner may regularly rely); in this case, however, our liability is limited to the compen­sation of the foreseeable, typically occurring damages.

(3) The limita­tions of liability arising from paragraph 2 shall not apply if we have fraudu­lently concealed a defect or assumed a guarantee for the condition of the goods. Nor shall the limita­tions of liability arising from paragraph 2 apply to claims from statutory strict liability, in parti­cular according to the Product Liability Act.

(4) Liability is excluded in all other respects.

(5) Insofar as our liability is excluded or limited on the basis of the above provision, this shall also apply to our staff, workers, employees, repre­sen­ta­tives and vicarious agents.

 

IX. Limitation period

(1) In the event of damages resulting from injury to life, body or health, which are due to a negligent breach of duty on our part or a deliberate or negligent breach of duty on the part of one of our legal repre­sen­ta­tives or vicarious agents, in the event of other damages, which are due to a deliberate or grossly negligent breach of duty on our part or a deliberate or grossly negligent breach of duty on the part of one of our legal repre­sen­ta­tives or vicarious agents, and in the case of damages due to a deliberate or negligent breach of cardinal obliga­tions from the respective contract or one of our legal repre­sen­ta­tives or vicarious agents, the statutory limitation period shall apply. The same applies in the case of statutory strict liability, in parti­cular under the Product Liability Act, and in the case of warranty liability.

(2) In all other cases, the limitation period is one year from delivery.

 

X. Confi­den­tiality

(1) The contracting parties shall treat as confi­dential any infor­mation or infor­mation materials which they receive, orally, in writing or in any other way, directly or indirectly, designated as confi­dential, or which an objective third party would regard as confi­dential due to their appar­ently sensitive nature.

(2) The obligation to maintain confi­den­tiality shall cease or shall not apply to such infor­mation, in respect of which the receiving party can prove that
- The infor­mation was already generally known when it was trans­mitted,
- The infor­mation was obtained by means other than that of the disclosing contracting party and no one has violated any duty of confi­den­tiality,
- The disclosing contracting party has waived the duty of confi­den­tiality in writing,
- It acquired the infor­mation independently without the use of confi­dential infor­mation,
- It is required to disclose the infor­mation by order of an authority or a court or due to mandatory legal requi­re­ments.

(3) The contracting parties shall accor­dingly require their employees and vicarious agents to maintain confi­den­tiality.

 

XI. Choice of law and place of juris­diction

(1) The law of the Federal Republic of Germany shall apply to these GTCSD and all legal relati­onships between us and the Customer, excluding the UN Convention on Contracts for the Inter­na­tional Sale of Goods.

(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 – also inter­na­tional – place of juris­diction for all disputes arising directly or indirectly from the contractual relati­onship is our regis­tered office in Munich, Germany. However, we are also entitled to bring legal action at the general place of juris­diction of the Customer.

(3) These GTCSD shall be inter­preted according to German law. They are written in German and English. Should there be any devia­tions between the German and English versions, the German version shall prevail.

 

Last updated: January 2023