GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF
BODY PRODUCTS RELAX Pharma und Kosmetik GmbH
headquartered in Frechen, Germany
Commercial register B 42487, Cologne Local Court (Amtsgericht)
Managing directors: Marcus Gerhard Friemel, Ralf Hucklenbroich
§ 1 GENERAL
(1) These general terms and conditions of delivery and payment (“terms and conditions”) shall apply to the conclusion, content and performance of all contracts with RELAX Pharma und Kosmetik GmbH (“Body Products”), in which Body Products participates as a (potential) seller and/or supplier of goods, products and/or goods (“goods”), regardless of whether it manufactures these itself or purchases these from suppliers. Deviations from these terms and conditions must be expressly agreed and shall apply exclusively to the (in-dividual) contract concerned.
(2) The applicability of general terms and conditions of business of the other party, in particular of terms and conditions of purchase, shall be excluded, should these conflict with these terms and conditions, deviate from them, oppose them or extend or supplement them.
(3) In these terms and conditions, “other party” is defined as any natural or legal person and any company with legal capacity which intends to conclude a contract with Body Products when carrying out its commercial or self-employed activities (entrepreneur as defined in § 14 of the German Civil Code – BGB) or has concluded a contract with Body Products (including institutions or corporations under public law).
(4) Should declarations and notifications of Body Products or the other party be required in accordance with these terms and conditions, written form or text for (fax, email) is required in order for these to be effective. In order to comply with the deadline, the timely handover, supply to the postal service or timely sending of a fax or email shall suffice.
(5) Contracts between Body Products and the other party shall be concluded exclusively in German. As a result, only the (German) version of the terms and conditions shall be decisive.
§ 2 OFFERS
(1) All offers of Body Products are subject to confirmation and do not represent a binding offer. The other party shall merely have the opportunity to order the products offered by Body Products and to submit a binding offer to purchase to Body Products. The other party shall be bound by its offer for two weeks, unless the offer provides for a longer binding period.
(2) In case of combined price statements in offers of Body Products, partial orders cannot be guaranteed at a pro rata price.
(3) In deviation from Paragraph 1, offers of Body Products which are made at the request of the other party and in line with its guidelines shall be binding if expressly stated as such. Body Products shall be bound by its offer for two weeks, unless the offer provides for a longer binding period. All catalogues, drawings, models, cost quotations, plans and other documents which were issued following a request by the other party in order to respond to an offer which it issued shall remain the property of Body Products and must be returned on first request.
(4) Should the other party not conclude a contract after the issuing of an offer issued by it in accordance with its guidelines, Body Products shall be entitled to charge the customer account of the other party the costs in-curred during the issuing of the offer and to invoice these.
§ 3 CONTRACTS
(1) A contract shall come into existence with the acceptance of an offer by Body Products in accordance with § 2 Paragraph 1 or by means of fulfilment of the service by Body Products. Offers of Body Products in accordance with § 2 Paragraph 3 which must be accepted by the other party are excluded from the above.
(2) The wording of the contract and/or the order confirmation shall fully reflect the agreement. Additions and/or alterations to the agreed services shall require a confirmation by Body Products or corresponding fulfilment by Body Products in order to take effect. Body Products shall be entitled to adjust the remuneration connected to an addition or alteration to the agreed service and to invoice this accordingly, as well as to adjust the (previously) agreed delivery time accordingly.
(3) The other party shall be obliged to provide Body Products with all information, documents and materials which are necessary in order to properly fulfil the contract.
(4) Body Products shall be entitled to engage the services of third parties in order to fulfil the contract.
§ 4 PRICES
(1) The (end) prices which are contractually agreed by means of offer and acceptance (including packaging, shipping/transport and insurance, as well as any statutory value added tax and additional duties due (for example miscellaneous taxes or customs charges) shall apply. The stated prices shall apply to provision of the goods ex-warehouse, unless other shipping conditions are agreed.
(2) Should wage, manufacturing, material or purchasing prices increase following conclusion of the contract, Body Products shall be entitled to pass the surcharge on to the other party and to increase the prices accord-ingly.
(3) All stated prices are in euros, unless Body Products and the other expressly agree a different currency.
(4) In case of contracts with more than one person, they shall incur liability in relation to Body Products as joint debtors.
§ 5 PAYMENT OBLIGATIONS / DEFAULT
(1) Immediately following receipt by the other party of the invoice of Body Products, all payments must be received in the bank account stated in the invoice, however not before Body Products has provided the goods in accordance with § 7 Paragraph 1. The other party shall not be entitled to a postponement, deferral, discount or set off unless Body Products has agreed to such in advance. The retention of payments due to warranty rights to which the other party is entitled or due to non-fulfilment on the part of Body Products shall be excluded from the above.
(2) Should the other party fail to fulfil its payment obligations on time, it shall enter default without an express warning. In case of payment default, all discounts granted on the outstanding payment and the outstanding amount shall be due in full. During the payment default, the claim of Body Products shall accrue interest to the amount of the respectively applicable statutory default interest for remuneration claims connected to le-gal transactions in which a consumer is not involved (currently 9% points above the applicable base rate of interest in accordance with § 288 paragraph 2 of the German Civil Code – BGB). The assertion of further claims connected to default shall be reserved by Body Products in all cases. A claim to the commercial due date interest shall remain unaffected by the default of the other party § 353 HGB). In addition, Body Prod-ucts shall be entitled to charge a fixed amount of 3 EUR for payment reminders in case payment obligations are not fulfilled on time.
(3) Regardless of wording to the contrary, all payments shall initially be set off against the statutory (out of) court costs, then against the due interest and then against the oldest outstanding invoice.
§ 6 CANCELLATION
Should the other party wish to cancel a contract (before or after fulfilment by Body Products (, Body Prod-ucts shall be entitled to charge 25% of the agreed total net price as fixed cancellation costs. Body Products reserves the right to claim higher losses in connection with the cancellation. The other party shall remain permitted to provide proof that no loss or value reduction in the goods were incurred by Body Products in connection with the cancellation or that the loss was significantly less than the fixed sum. Body Products shall not be obliged to accept a cancellation.
§ 7 PROVISION / TRANSFER OF RISK
(1) The goods shall be provided at the place of business of the other party or at the location specified by the other party in the order. Should the goods be collected by the other party at the warehouse of Body Products, Body Products shall be deemed to have provided performance by means of the provision of the goods at its own warehouse. At the time of provision of the goods, the risk of possible destruction, damage or loss of the goods shall be transferred to the other party.
(2) Should the goods to be delivered consist of components with individual significance, Body Products shall be entitled to carry out partial deliveries and issue separate invoices.
(3) Body Products shall be entitled to deliver goods which deviate from the contract in a minor way, should this provide the other party with an equivalent or more satisfactory result.
(4) In case of ongoing contracts or deliveries by call up, the other party shall be obliged to accept the agreed quantity of goods within the agreed period of time and, if no express period of time was agreed, within six (6) months of conclusion of the contract.
(5) In case of an acceptance obligation assumed by the other party, Body Products shall be obliged to store the goods for at least one week at the expense and risk of the other party or to have these stored and/or to con-sider the contract annulled after seven days and to charge the account of the other party accordingly. Should Body Products annul the contract, this must be notified to the other party. In case of annulment, § 6 shall apply accordingly.
§ 8 FORCE MAJEURE
(1) Should force majeure of circumstances which make performance of the contract impossible or unreasonable occur, without fault being present on the part of Body Products, the mutual contractual obligations shall be suspended until the said circumstances have passed.
(2) “Force majeure” includes the following in particular:
(Natural) disasters, general measures by the authorities (for example declaration of a state of emergency, exit blocks), war, civil commotion, strikes, unusual standstills which affect the management of Body Products and/or its suppliers.
(3) Should the force majeure last for longer than three months, both parties shall be entitled to terminate the contract by means of a declaration to the other party. However following annulment of the contract, Body Products shall be entitled to charge to the other party the (partial) services which were provided prior to the occurrence of the event of force majeure. Neither party shall be entitled to damages claims should the con-tract be annulled due to events of force majeure.
§ 9 RESERVATION OF OWNERSHIP
(1) Body Products shall remain the owner of all goods until the other party has fulfilled all current and future claims of Body Products, including statutory value added tax and any additional duties (for example other taxes or customs charges) under one or more contracts and an ongoing business relationship (reservation of ownership).
(2) The other party shall be obliged to store all goods in a manner which demonstrate they are the property of Body Products and separate from similar items.
(3) Should the ownership of an item not have been transferred to the other party, it shall not be entitled to grant rights in favour of third parties in relation to the delivered goods (for example right of lien, provision as se-curity) nor to hand the goods over to third parties (for use) in deviation from these terms and conditions. The other party shall immediately inform Body Products if and to the extent third party attacks occur against the goods (for example surrender demand, compulsory enforcement measures).
(4) In case of behaviour on the part of the other party which is in breach of contract, in particular in case of non-payment of the price despite it being due, Body Products shall be entitled to rescind the contract in accordance with the statutory regulations and/or to demand return of the products by claiming reservation of ownership. The surrender demand shall not include a declaration of rescission at the same time. Rather Body Products shall be entitled to merely demand surrender of the goods and reserve the right to rescind the contract. Should the other party fail to pay the price due, Body Products may only claim the rights if the other party has first been set a reasonable deadline for payment or if such a setting of a deadline is not required in accordance with the statutory regulations.
(5) The other party shall be entitled to use or sell the goods in the course of ordinary business dealings. In case of connection, mixing or processing of the goods, Body Products shall acquire the resulting product at its full value and shall be deemed to be the manufacturer. Should the goods be processed, mixed or connected with third party items and should the ownership rights of the third party continue to apply, Body Products shall acquire co-ownership to the relationship of the invoice values of the processed, mixed or connected goods amongst themselves. Otherwise, the same shall apply to the created product as applies to the goods delivered under reservation of ownership themselves, i.e. the rights of Body Products (co-ownership/ownership) shall elapse in accordance with Paragraph 1.
(6) The claims against third parties which arise out of the reselling of the goods or from the reselling of the products created by means of the connection, mixing or processing are hereby now being assigned to Body Products by the other party in full and/or to the amount of any co-ownership share of Body Products in ac-cordance with the paragraph above and Body Products hereby accepts the assignment. The obligations of the other party stated in Paragraph 3 shall also apply in relation to the assigned claims. The other party shall remain entitled to collect the claims alongside Body Products. Body Products shall be obliged not to collect any claims, providing the other party has fulfilled its payment obligations in relation to Body Products, does not enter payment default, no application for the opening of insolvency proceedings has been filed and no other impairment of its ability to provide performance is present. However, should this not be the case, Body Products can request that the other party provide notification of the assigned claims and their debtor, provides all necessary information for the collection, hands over the associated documents and notifies the debtors (third parties) of the assignment. Should the realisable value of the securities exceed the claims of Body Products by more than 10%, following a request by the other party, Body Products will release the se-curities to the amount which goes beyond the permitted security requirements according to its choice.
§ 10 COPYRIGHT / INTELLECTUAL PROPERTY
(1) Body Products shall retain all copyright and intellectual property rights in relation to the drawings, models, product specifications, drafts, forms, programs and similar provided to the other party. The other party hereby wavers any rights to which it may be entitled in this respect, even if not entry of rights is carried out in corresponding registers (for example in the German Trademark and Patent Register) and shall be obliged to endeavour to the best of its ability to ensure that the rights of Body Products are not infringed by third parties. The other party shall not be entitled to use the documents referred to above in any way other than for the conclusion of a contract with Body Products or in order to perform a contract signed with Body Products.
(2) By means of the provision of drawings, models, product specification, drafts, forms, programs and similar by Product, no licence or other usage relationship shall be acquired in favour of the other party. The other party shall not be permitted to alter delivered goods in full or in part or to package these with a different brand name, other (business title) or other packaging, unless expressly permitted under the contract con-cluded with Body Products.
(3) The other party shall be legally responsible for ensuring that the engagements or information issued by it do not and will not infringe third party rights or statutory provisions. The other party shall release and hold harmless Body Products from all third-party claims brought in this respect.
§ 11 COMPLAINT OBLIGATIONS
(1) The other party shall be obliged to immediately check the ordered goods following receipt for completeness, as well as obvious deviations, deficits, damage and defects and to raise a complaint to Body Products in such a case. Should (further) deviations deficits, damage or defects be apparent during the periods of time in accordance with § 11 Paragraph 3, a complaint must also be raised to Body Products immediately after their discovery. A complaint shall be deemed to be immediate if carried out within three working days (Mondays to Fridays) following receipt of the goods or subsequent observation of deviations, deficits, damage or defects. The reasons for the complaint must be set out in full. All claims in relation to delivered goods and issued invoices which go beyond the above must be reported to Body Products by the other party within eight days of discovery.
(2) Should no timely or proper complaint be made in relation to delivered goods, the goods delivered by Body Products shall always be deemed to have been provided and approved in accordance with the contract at the time of payment of the invoice and all claims of the other party in this respect shall be forfeited.
(3) Deviations from the usual delivery quality must be agreed in writing in advance. Minor and/or customary deviations in the quality or quantity of the delivery (including: number, dimension, range, weight, colour, design or draft) shall not give rise to a complaint entitlement, should the requirements in § 7 Paragraph 3 be fulfilled.
(4) Should the other party have submitted a complaint effectively, payment obligations of the other party in relation to the (partial) service concerned which have not yet been provided shall be postponed. Body Prod-ucts shall then subsequently provide the agreed service within a reasonable deadline, unless the other party wishes for the contract to be cancelled. Any (partial) service/payment which has already been provided shall then be credited (credit note).
(5) In case of an unjustified or late complaint, the other party shall be obliged to reimburse Body Products in relation to all (additional) costs and expenses which have been incurred as a result.
(6) Good in relation to which an effective complaint has been raised shall be collected and taken back by Body Products from the premises of the other party at its own expense and risk.
§ 12 WARRANTY / LIABILITY / DAMAGES
(1) In case of defects to the delivered goods, the other party shall be entitled to the statutory rights in relation to liability for material defects in accordance with §§ 434 ff of the German Civil Code (BGB) – subsequent performance (improvement or new delivery), reduction, rescission or damages). However, Body Products shall be initially entitled to choose between correction of the defect (improvement) or delivery of a defect-free item within the framework of supplementary performance. The choice can only take place by means of notification to the other party within five working days (Mondays to Fridays) following the reporting of the defect. Without such a notification, Body Products shall deliver a new, defect-free item. The right of Body products to refuse subsequent performance under the statutory requirements shall remain unaffected.
(2) Should the defect correction in accordance with Paragraph 1 fail or should this be unreasonable for the other party, or should Body Products generally refuse subsequent performance, the other party shall, in accordance with the statutory provisions be entitled to rescind the sales agreement, reduce the price, demand damages or request reimbursement of its futile expenses. For damages claims of the other party, the special provisions in accordance with Paragraphs 4 and 5 below shall apply. No right of rescission shall exist in case of minor defects. The other party can only rescind or terminate the contract due to another breach of obligation which does not relate to a defect in relation to the goods if Body Products is responsible for the breach of obligation. A free right of termination shall be excluded.
(3) The warranty rights of the other party shall be time barred within one year of delivery or provision of the goods (§ 7 Paragraph 1). In case of defects to a construction work or an item which has been used for a construction work in accordance with its usual manner of work and which caused its defectiveness, the warranty rights of the other party shall be time barred within five years of delivery or provision of the goods (§ 7 Paragraph 1).
(4) Body Products shall not incur liability for losses which are due to a negligent breach of obligation of Body Products or its legal representatives / vicarious agents. The limitation of liability above shall not apply in case of an injury to life, body or health or a breach of essential contractual obligations (so-called cardinal obligations) which are due to a negligent breach of obligation by Body Products or its legal representatives / vicarious agents or should a defect be fraudulently concealed or should Body Products have assumed a guarantee for a specific quality of the object of purchase or should the German Product Liability Act (Produkthaftungsgesetz) apply. A cardinal obligation of Body Products is the creation of defect-free ownership of the goods for the other party. The limitation of liability in accordance with Sentence 1 above shall therefore not apply in case of losses connected to a defect in the delivered goods.
(5) The damages claim for the breach of essential contractual obligations is limited to losses which are typical of the contract and foreseeable, unless a further case of mandatory liability in accordance with Paragraph 4 Sentence 2 is present. Liability for losses which are not typically expected in accordance with the type of the respective order and goods and in case of normal use of the goods will not be assumed. Liability for losses connected to data loss shall be exclude, should the restoration not be possible or made more due to lacking or insufficient data backup.
(6) The provisio0pns of Paragraphs 4 and 5 above apply to all damages claims, regardless of legal reasons, in particular due to defects, breach of obligations under the contractual relationship and due to unlawful acts. These also apply to claims for the reimbursement of futile expenses.
§ 13 RIGHTS OF BODY PRODUCTS
(1) Until complete fulfilment of all outstanding payment obligations of the other party or until the provision of sufficient security, Body Products is entitled to retain all goods to be delivered to the other party.
(2) Should the other party not fulfil its payment obligations, be or have been liquidated, dies, has applied for the opening of (also provision) insolvency or other court bankruptcy proceedings in relation to its assets or should such proceedings have been ordered, should assets or rights of the other party have been seized or at-tached, all claims of Body Products against the other party shall become due immediately. Furthermore, Body Products shall be entitled to suspend all future deliveries owed until complete fulfilment of all claims which are due. Should the claims which have been made due not be fulfilled within 4 weeks of becoming due, Body Products shall be entitled, by means of a unilateral declaration to the other party and without any further delay or court intervention to rescind all contracts concluded between the parties in relation to any delivery obligations not yet fulfilled. The obligation of the other party to fulfil the claims which have been made due and claims of Body Products to the reimbursement of all financial and other losses incurred due to the default by the other party shall remain unaffected.
§ 14 APPLICABLE LAW AND PLACE OF JURISDICTION
(1) The law of the Federal Republic of Germany shall apply exclusively to the conclusion, content and fulfil-ment of all contracts concluded with Body Products, to the exclusion of the United Nations Convention governing the International Sale of Goods (CISG). The requirements and effects of the reservation of ownership in accordance with § 9shall be subject to the laws at the respective storage location of the goods and/or of the product created by means of the connection, mixing or processing, if and to the extent that the applicability of German law is unlawful or ineffective.
(2) The exclusive place of jurisdiction, also internationally for all disputes under or in connection with the con-tracts concluded with Body Products (including those concerning the validity of contracts) shall be Cologne, to the extent that is legally permitted. In addition, Body Products shall always remain entitled to bring claims before the general place of jurisdiction of the other party.
§ 15 CLOSING PROVISIONS
(1) Should a provision of these terms and conditions be or become ineffective in full or in part, the effectiveness of the remaining clauses shall remain unaffected.
(2) Body Products shall be entitled to alter these terms and conditions. New general terms and conditions of supply and payment shall apply, provided that the other party has been informed of such.