General Terms of Sale and Delivery (German abbreviation: AGB) (Status as at February 2023)
1. General information – scope
a) Our AGB shall apply exclusively; we shall not recognise contradictory terms and conditions of the orderer or terms and conditions which deviate from our AGB unless we had explicitly approved their validity in writing. Our AGB shall also apply if we carry out the delivery to the orderer without reservation with the knowledge of contradictory terms and conditions of the orderer, or terms and conditions which deviate from our AGB.
b) All agreements between us and the orderer require a written form in order to be valid. This shall also apply to supplements and amendments to the contract.
2. Prices – terms of payment
a) The prices are deemed ex works including packaging plus the respective applicable value added tax. Within Germany, deliveries with a minimum goods value of 1,200.00 Euros net will be provided free of charge to delivery address. To other European countries, consignments of 10 pallets or more are delivered free of charge to delivery address. For deliveries to all other countries: by arrangement.
b) Insofar as not otherwise agreed the purchase price is due and payable pure net within 14 days after the invoice date with 2% cash discount or within 30 days from the invoice date. The payment shall only be deemed as made when the owed amount has been irrevocably credited to us.
c) If the orderer is in default of payment we are entitled to assert the damages due to default in the amount of 8% points above the respective valid base lending rate. The right is reserved to prove higher damages.
d) The orderer can only offset against such claims which are undisputed or have been declared final and binding or have been recognised by us.
3. Delivery – delivery time
a) The fulfilment of delivery deadlines is dependent upon us being supplied with all of the necessary documents such as artwork for labels and packaging or artwork for designs, and all details relating to the packing of the goods (box contents, quantity of boxes per pallet and quality of pallets) etc, which have to be provided by the Customer. If the documents stated in Sentence 1 are not made available in good time the deadlines shall be extended to a reasonable extent unless we were responsible for the delay.
b) All events of force majeure, in particular those events, for which we are not responsible, shall release us from the fulfilment of the assumed contractual obligations for as long as these events last. We undertake to inform the orderer immediately in writing if such an event occurs; at the same time we will inform the customer how long such an event is expected to last. If such an event lasts for longer than three months, we are entitled to cancel the contract.
c) If we are delayed in the delivery, the orderer can request compensation for each full week of the delay of 0.5% each in total, however, a maximum of 5% of the part of the delivery concerned in the event that a damage is substantiated.
d) In case of special productions for customers, customer-own motif prints, packaging units or labels, we reserve the right to an additional or shortfall in delivery of +/- 10%.
e) Claims for damages of the orderer owing to delay in delivery and claims for damages instead of the service which go beyond the limits of Subclause c) are excluded in all cases of the delay in delivery, and also after the expiry of a deadline for the delivery that has possibly been set for us. This shall, however, not apply insofar as we are essentially liable in cases of wilful intent, gross negligence or owing to injury to life, the body or health. A cancellation of the contract by the orderer is only possible insofar as we are responsible for the delay.
f) The orderer has to declare within a reasonable deadline whether it will cancel the contract owing to the delay in delivery or shall insist on the delivery.
g) Insofar as the orderer is in default with acceptance we are entitled to assert compensation of 1% of the delivery value concerned for each full week of the delay. The compensation for default shall be increased if we provide proof of higher damages for which the orderer is responsible. The compensation is to be estimated lower if the orderer proves towards us that no damages at all or substantially less damages were suffered than the flat rate damages as a consequence of the default, for which it is responsible.
h) Insofar as the orderer is in default of acceptance the risk of accidental loss or accidental deterioration of the delivery shall pass to the orderer.
4. Storage Agreement
The following provisions have been agreed upon, in detail, for the storage of goods ordered by the Customer:
a) The ordered goods must be ready for dispatch by the confirmed delivery date. If the Customer does not call up the ordered goods by the confirmed date for delivery, delay in acceptance is held to have been incurred.
b) In the case of up to 60 calendar days delay in acceptance as from the confirmed delivery date, storage is initially provided free of charge. After the 61st calendar day of delay in acceptance, a storage charge of € 2.00 per pallet space per day is charged as from the 61st calendar day up to and including the 90th day. After the 91st calendar day, storage continues free of charge. The following rules also apply as from the 91st calendar day:
The Parties to contract confirm that the ordered goods were made identifiable to the Customer by virtue of their packing and their marking with article numbers, such that they can be unequivocally distinguished from other goods. The ordered goods will be held in readiness at the corresponding HOSTI storage location, ready for collection by the Customer. These arrangements are deemed by joint consensus to change any other mode of delivery that may have been agreed upon.
Possession, ownership and risk concerning the ordered goods revert to the Customer, and the Customer declares its consent for HOSTI to hold the ordered goods on the Customer’s behalf.
The price for the ordered goods and the incurred storage charge are billed to the Customer on net payment terms of 7 days, and the Customer accepts billing on that basis. Any and all discounts that are held are to become inapplicable.
In the event of more than 151 calendar days’ delay in acceptance, HOSTI is entitled to dispose of the goods by the most favourable means, in any manner whatsoever and without notice. The Customer expressly consents to the above arrangement, and will be credited with the net proceeds of disposal secured in the process.
The duration of the delay in acceptance will be subtracted from the guarantee period, precluding any liability for deficiencies in the goods that may arise due to the delay in acceptance. HOSTI will be liable only for grossly negligent or wilful infringement of its custodianship obligations.
5. Passing of risk
The risk of accidental loss or accidental deterioration of the delivery shall pass to the orderer ex works. This shall also apply if we carry out the delivery or have the delivery carried out to its registered seat at the orderer’s request. Insofar as the orderer covers transport insurance, it undertakes to hereby now already assign all claims for compensation to us, insofar as these refer to the material and price risk assumed by the orderer. We hereby accept the assignment.
6. Liability for defects
a) The orderer undertakes to inspect the object of delivery immediately and to assert possible reports for defects in writing. A deadline of 2 workdays shall be deemed as in good time for reporting a defect.
b) The aforementioned regulations shall also apply to excess – and shortfalls in – deliveries as well as to possible false deliveries.
c) In the event of the existence of material defects, at the buyer’s choice, all those parts or services which feature a material defect are to be subsequently improved, newly delivered or newly provided free of charge, within the statute-of-limitations – irrespective of the operating duration – insofar as its cause existed at the time when the risk was passed already.
d) First of all we are to be given the opportunity for subsequent fulfilment within a reasonable period of time. In the event that the subsequent fulfilment fails the buyer can – irrespective of possible claims for damages according to Subclause 7 (other claims for damages) – cancel the contract or reduce the remuneration.
e) Claims for material defects shall become statute-barred in 12 months. This shall not apply insofar as longer deadlines are stipulated by law according to Sections 438 Par. 1 No. 2 (Buildings and objects for buildings), 479 Par. 1 (Claim for recourse) and 634 a Par. 1 No. 2 (Building defects) BGB [German Civil Code] and in the event of injury to life, the body or health and with a wilful or grossly negligent breach of obligation by us, as well as in case of the malicious failure to disclose a defect. The regulations concerning the inhibition to expiry, inhibition or new start to the deadlines shall remain unaffected.
f) Subclause 7 (other claims for damages) shall incidentally apply to claims for damages. Further or other claims of the orderer against us and our vicarious agents owing to a material defect than those regulated in this Subclause 6 are excluded.
g) The statutory right of cancellation of the orderer presumes no fault by us with the existence of a defect to the object of delivery. In all other cases the orderer can only cancel the contract with the existence of a breach of obligation for which we are responsible.
7. Other claims for damages
a) Claims for damages and reimbursement of expenses of the orderer (hereinafter: claims for damages), no matter for what legal grounds, in particular owing to a breach of the obligations from the debt relationship and from illicit act are excluded.
b) This shall not apply, insofar as liability is mandatory, owing to injury to the body, health e.g. according to the German Product Liability Act, in cases of wilful intent, gross negligence, owing to the breach of essential contractual obligations. The claim for damages for the breach of essential contractual obligations is, however limited to the typical, foreseeable damages for a contract insofar as there is no wilful intent or gross negligence or liability is assumed owing to injury to life, the body or health. The aforementioned regulations are not associated with a change to the burden of proof for the disadvantage of the orderer.
8. Reservation of title
a) We reserve the right to the property of the object of purchase until the receipt of all payments from the business relationship with the orderer. In case of conduct of the orderer in breach of the contract, in particular with default of payment we are entitled to take the object of purchase back. The taking back of the object of purchase shall not constitute a cancellation of the contract, unless we had explicitly declared this in writing. The attachment of the object of purchase by us shall always constitute a cancellation of the contract. After taking the object of purchase back we are authorised to sell it, the sales proceeds are to be offset against the liability of the orderer –minus reasonable sales costs.
b) In case of attachments or other interventions of third parties the orderer has to inform us immediately in writing.
c) The orderer is entitled to resell the object of purchase in the ordinary course of business; it hereby now already assign all claims to us in the volume of the final invoice amount (including value added tax), accrued to it from the resale against its buyers or third parties, irrespective of whether the object of purchase has been resold without or after processing. The orderer shall also remain authorised to collect this claim after the assignment. Our authorisation to collect the claim ourselves shall remain unaffected hereby. However, we undertake not to collect the claim as long as the orderer satisfies its payment obligations from the collected proceeds, is not in default of payment and in particular no application has been filed for the opening of insolvency proceedings or payments have been suspended. If this is, however, the case we can request that the orderer informs us of the assigned claims and their debtors, provides all information that is necessary for the collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
d) Insofar as the value of all collateral exceeds the realisable value of our claims by more than 10%, we are obliged to release the corresponding collateral items at the orderer’s request, whereby we are responsible for selecting the collateral items, which are to be released.
e) In case of breaches of obligations of the orderer, in particular with default of payment, we are entitled, after the unsuccessful expiry of a reasonable deadline set to the orderer for the payment, to cancellation and to take the goods back; the statutory provisions concerning the dispensability for setting a deadline shall remain unaffected. The orderer is obliged to hand the goods over.
9. Acceptance obligation upon termination of the agreement
Upon termination of the framework supply agreement, the customer is committed to accept any remaining product quantities (and associated delivery-related products/materials) at the contractually agreed price.
10. Confidentiality Obligation
1. The customer is committed to keeping confidential all commercial and technical details that become known to him from our business relationship. All illustrations, drawings, calculations and other documents and information received from us must be kept strictly confidential; they may not be sold, pledged, or otherwise passed on to third parties without our consent, nor in any way used for third parties and must be returned to us upon request.
2. We retain all rights to such confidential information, including copyrights and the right to apply for industrial property rights, such as patents, utility models, etc.). In so far as these have been made available to us by third parties, this reservation of rights also applies to the benefit of these third parties.
3. This confidentiality obligation shall also apply after the fulfilment of the contract.
4. In so far as the customer carries out checks concerning the goods delivered to us, the customer undertakes to make records of the tests carried out and to archive all test, measurement, and control results for six years. We are entitled to inspect and make copies of these documents anytime.
11. Place of jurisdiction – place of performance – applicable law
a) In case of all disputes arising from the contractual relationship between us and the orderer our registered seat shall be the sole place of jurisdiction. We are, however, entitled to also file action at the orderer’s registered seat.
b) The place of performance for all liabilities arising from the contract, including the payment obligations of the orderer, is our registered seat.
c) German law shall be deemed as agreed for all contracts; the provisions of the UN Convention on Contracts for the International Sale of Goods are excluded.
