All deliveries, services and offers of ERZI-Flock-Technik GmbH & Co. KG (hereinafter also referred to as the "Seller") are made exclusively on the basis of these General Terms and Conditions. These are an integral part of all contracts that we conclude with our contractual partners (hereinafter also referred to as "buyers") for the deliveries or services offered by us. They shall also apply to all future deliveries, services or offers, even if they are not separately agreed again. Any deviating agreement requires our written confirmation. The buyer waives the assertion of his own purchasing conditions. These shall also not become part of the contract through our silence or through our delivery. Individual contractually agreed provisions within the contractual relationship take precedence over the General Terms and Conditions.
§2 Offer and conclusion of contract
Our offers are subject to confirmation and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders only become binding with our written confirmation. Our written order confirmation is decisive for the content and scope of the contract. Collateral agreements, amendments, supplements etc. require our written confirmation. The seller reserves the ownership or copyright to all offers and cost estimates made by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the buyer. Without the express consent of the Seller, the Buyer may not make these items accessible to third parties, disclose them, use or reproduce them himself or through third parties, either as such or in terms of content. At the Seller's request, he shall return these items to the Seller in their entirety and destroy any copies made if they are no longer required by himin the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
The delivery dates stated by us are not binding unless they have been expressly confirmed by us in writing as a binding delivery date. Over- or under-deliveries of 3% are possible due to production and must be accepted and are not considered defects. The Seller shall not be liable for the impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract, such as operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of manpower, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the failure to deliver, incorrect delivery or late delivery by suppliers for which the Seller is not responsible. These unforeseeable events entitle us to deliver accordingly later or to withdraw from the contract in whole or in part without the buyer being entitled to claim damages. This shall also apply if the aforementioned events occur at a time when we are in default. In the event of a delay in delivery which is unreasonable for the purchaser, the latter shall also be entitled to withdraw from the contract to the exclusion of claims for damages. If there is a delay in delivery or performance, the purchaser is entitled to withdraw from the contract after expiry of a reasonable period of grace of at least 4 weeks to be granted to us.Withdrawalmust in any case be made by means of a written declaration. If the excess is limited to one part of the delivery or service, the right of rescission shall also be limited to the affected part, if such limitation of the right of rescission does not affect the rest of the contract in an objective assessment. Any liability for damages existing in the event of default shall be limited to a default compensation for each completed working week of the delay of 0.5% up to a maximum total of 5% of the value of the affected (partial) delivery or service. We shall be entitled to make partial deliveries and, with corresponding prior information, also to make premature deliveries. All goods dispatched by us shall be dispatched at the expense and risk of the Buyer, the latter even if carriage paid delivery has been agreed. The risk of accidental loss shall pass to the buyer when the goods are handed over to the person responsible for transport, but no later than when the goods leave the factory. In the event of a delay in acceptance, we are entitled to store the goods at the expense and risk of the buyer or to charge our own storage costs. The buyer's shipping instructions are only binding if they have been agreed in writing. Otherwise we shall deliver at our best discretion and to the exclusion of any liability for the choice of shipping method. If the purchaser is in default of payment for an earlier delivery, we shall be entitled to withhold deliveries without any obligation to compensate for any damage incurred. The purchaser undertakes to inspect incoming goods immediately and, if necessary, to give notice of defects without delay if deviations from the defined quality level are found during the delivery of an order. If the buyer does not record any quality deviations within the scope of an incoming goods inspection and does not pass these on to the seller, the goods shall be deemed to have been accepted by the buyer and any rights of revocation shall thus lapse. We recommend to store the applicators covered, i.e. protected fromUV radiation. The covered storage keeps the ageing process and the discoloration of the plastic applicators as low as possible. The uncovered storage of the applicators can lead to strong discolorations due to UV exposure on the plastic material. In addition, we recommend storing the applicators in a normal climate if possible.
§4 Prices and payment
The prices shall apply to the scope of services and deliveries specified in the order confirmations. Additional or special services shall be invoiced separately. The prices are quoted in € ex works including packaging, plus the statutory value added tax, plus customs duties, fees and other public charges in the case of export deliveries. Our invoices are to be paid in € free of charges. The invoices are due in accordance with the terms of payment agreed in the individual contract. Payments are generally credited against the oldest claims. A set-off of the buyer with a counterclaim is only permissible if the counterclaim of the buyer has been expressly acknowledged in writing in advance or the counterclaim has been legally established. Offsetting is otherwise excluded. If the term of payment is exceeded, default interest of 8% above the respective base interest rate of the Deutsche Bundesbank shall be payable. The proof of a higher damage and our legal claims (in particular reimbursement of additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum shall be set off against further monetary claims. The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, he becomes aware of circumstances which are suitable to significantly reduce the creditworthiness of the Buyer and which endanger the payment of the outstanding claims of the Seller by the Buyer arising from the respective contractual relationship.
§5 Retention of title
The delivered goods shall remain our property until the purchaser has paid in full all our present and future claims arising fromthe purchase contract and the current business relationship (secured claims). The goods subject to retention of title may not be pledged to third parties or assigned as security until payment has beenmade in full. The purchasermust informus immediately in writing if and to the extent that third parties access the goods belonging to us. In the event of breach of contract by the purchaser, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of retention of title and withdrawal. If the purchaser does not pay the due purchase price, we may only assert these rights if we have unsuccessfully set the purchaser a reasonable deadline for payment beforehand or if such setting of a deadline is superfluous according to the statutory provisions. The purchaser is obliged to keep the reserved goods in safe custody and to insure them at his own expense against loss and damage. He hereby assigns his claims from the insurance contracts to us in advance by way of security. The purchaser is 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 in addition: The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods. If the retention of title of third parties remains in effect during processing,mixing or combining with goods of third parties, we shall acquire coownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title. The Buyer hereby assigns to us byway of security any claims against third parties arising from the resale of the goods or the product as a whole or in the amount of our possible coownership share pursuant to the preceding paragraph. We accept the assignment. The purchaser remains authorised to collect the claim alongside us. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, is not in default of payment, has not filed for insolvency and there is no other defect in his ability to pay.
§6 Warranty, liability
Complaints about our deliveries or services, including incorrect deliveries, must be notified to us in writing within one week of receipt of the goods or performance of the service or, in the case of hidden defects, within one week of discovery of the defect. If obvious defects are not reported, not reported in time and/or not reported in due form, the warranty shall lapse in this respect. If the items delivered by us are repaired or modified without our cooperation or if the instructions for use or storage were not complied with, our warranty liability shall lapse. If we are held liable by third parties for damages which are not caused in our production area but in the area attributable to the purchaser, the purchaser shall be obliged to indemnify us against such claims. In the event of justified notices of defects, the buyer shall initially have the right to demand subsequent performance. The right to choose whether a new delivery of the goods or a remedy of the defect takes place within a reasonable period of time shall be at our discretion. In addition, we shall have the right, in the event of the failure of an attempt at subsequent performance, to carry out a new subsequent performance of our own choice. If neither subsequent improvement nor replacement delivery is made, the purchaser shall be entitled to withdraw from the contract or to reduce the remuneration in accordance with the significance of the defect. In all cases of justified notices of defects, claims going beyond the claim to repair or replacement (e.g. damages from warranty or from positive breach of contract, culpa in contrahendo or tort due to impossibility, delay, failure or nonexecution of repair or replacement) are limited to intent and gross negligence. The purchaser must prove the reason for and amount of the damage incurred. The same applies to the futile expenses. The Buyer's statutory rights of recourse against us shall only exist insofar as the Buyer has not entered into any agreements with its customers that go beyond the statutory claims based on defects. The assertion of warranty claims has no influence on the payment obligations and periods. If the purchaser does not fulfil his payment obligations or does not fulfil them on time, our above-mentioned obligations shall be suspended until the payment obligation has been fulfilled. In the event of justified complaints, our liability is limited to the value of the goods delivered and complained about by us. The warranty or limitation period shall be 12months after transfer of risk. In any case, the buyer must prove that the defect already existed at the time of delivery. With our delivered applicators, colour variations cannot be excluded either on the plastic blank or on the flock fibres. These colour variations are due to slight variations in the raw material as well as to slight variations in the manufacturing process of our suppliers. ERZI-Flock-Technik GmbH & Co. KG must also accept these variations between the batches of the suppliers and can therefore not completely rule out any colour variations that may occur!
§7 Place of performance and jurisdiction
Place of performance for all deliveries and payments is Reutlingen, place of jurisdiction is Reutlingen. However, we are also entitled to sue the buyer at the court of his place of business or residence. German law shall apply to the contractual relationship, in particular in the case of cross-border deliveries, with the express exclusion of the UN Convention on Contracts for the International Sale of Goods.
§8 Severability clause
The contract and these terms and conditions shall remain in force even if individual provisions are legally invalid or unenforceable. The validity of the remaining provisions shall not be affected thereby. In this case, the parties undertake to agree on an effective provision / agreement which comes as close as possible to the economic content of the ineffective / impracticable provision and the will of the parties and which is also legally permissible. Amendments to the contract must be made in writing. This also applies to the waiver of this written form requirement.