General Terms and Conditions of Delivery and Payment
BODY PRODUCTS RELAX Pharma and Kosmetik GmbH
with registered office in Frechen, Germany
HRB 42487 Local Court Cologne
Managing Directors: Marcus Gerhard Friemel, Ralf Hucklenbroich, Yorck von Kries
§ 1 GENERAL
(1) These General Terms and Conditions of Delivery and Payment (“Terms”) shall apply to the condition, content and performance of all contracts with BODY PRODUCTS RELAX Pharma und Kosmetik GmbH (“Body Products”) in which Body Products acts as (potential) seller and/or supplier of goods, products and/or merchandise (“Merchandise”), irrespective of whether the Merchandise is manufactured by Body Products or purchased from suppliers. Any deviation from these terms and conditions must be expressly agreed and shall apply exclusively to the (individual) contract in question.
(2) The applicability of the general terms and conditions of the other party, in particular purchasing terms and conditions, is excluded if and to the extent that these contradict, deviate from, conflict with or extend or supplement the terms and conditions.
(3) In these Terms and Conditions, “Other Party” shall be understood to mean any natural or legal person and any partnership with legal capacity which intends to conclude or has concluded a contract with Body Products in the exercise of its commercial or independent professional activity (entrepreneur within the meaning of § 14 BGB) (including institutions or corporations under public law).
(4) If declarations and notifications by Body Products or the Other Party are provided for in these Terms and Conditions, they must be made in writing or in text form (fax, e-mail) in order to be effective. Timely delivery, posting or timely dispatch of fax or e-mail shall be sufficient to comply with the time limit.
(5) Contracts between Body Products and the Other Party shall be concluded exclusively in the German language. Accordingly, only this (German-language) version of the terms and conditions shall apply.
§ 2 OFFERS
(1) All offers made by Body Products are subject to confirmation and do not constitute binding offers. The Other Party shall only be given the opportunity to order the goods 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 a fortnight, unless the offer provides for a longer binding period.
(2) In the case of composite price quotations in Body Products’ offers, partial orders at a proportional price cannot be guaranteed.
(3) By way of derogation from subsection 1, offers made by Body Products specifically at the request and according to the instructions of the other party shall become binding if they are expressly made as such. Body Pro-ducts is bound by an offer for a fortnight, unless the offer provides for a longer binding period. All catalogues, drawings, models, cost estimates, plans and other documents issued for an offer made specifically at the request of the Other Party shall remain the property of Body Products and shall be returned upon first request.
(4) If the Other Party does not wish to conclude an agreement after an offer has been made specifically and in accordance with its specifications, Body Products shall be entitled to debit the Other Party’s customer account with the costs incurred for the preparation of the offer and to invoice these.
§ 3 CONTRACTS
(1) A contract shall be concluded upon acceptance of an offer pursuant to § 2 para. 1 by Body Products or upon performance of the service by Body Products. This shall not apply to offers made by Body Products pursuant to § 2 para. 3, which shall be accepted by the Other Party.
(2) The wording of the agreement and/or the order confirmation shall reflect the agreement in full. Additions to and/or changes in the agreed services shall require the confirmation of Body Products or the corresponding performance by Body Products in order to be effective. Body Products shall be entitled to adjust the remuneration associated with an addition to or change in the agreed performance and to invoice it 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 necessary for the proper performance of the agreement.
(4) Body Products is entitled to use the services of third parties for the performance of the Agreement.
§ 4 PRICES
(1) The (final) prices (including packaging and insurance) agreed in the contract by offer and acceptance shall apply, plus statutory value added tax and any other levies (e.g. other taxes or customs duties). The prices stated apply to the provision of the goods ex warehouse, unless other shipping conditions have been agreed.
(2) If, after the conclusion of the agreement, labour wages, manufacturing or material costs or purchase prices increase, Body Products shall be entitled to pass on the increase to the other party and to increase the prices accordingly.
(3) All prices quoted are in euros, unless Body Products and the Other Party expressly agree on a different currency.
(4) In the case of agreements with several persons, each of them shall be liable to Body Products as joint and several debtor.
§ 5 PAYMENT OBLIGATIONS / DEFAULT
(1) All payments shall be credited to the account specified in the invoice immediately after receipt of the invoice from Body Products by the Other Party, but not before Body Products has made the goods available in accordance with Article 7, paragraph 1. The Other Party shall not be entitled to any deferment, respite, discount or set-off, unless Body Products has agreed to this in advance. This does not apply to the retention of payments on the basis of warranty rights to which the Other Party is entitled or on the basis of non-performance by Body Products.
(2) If the Other Party does not fulfil its due payment obligations in due time, it shall be in default without an express reminder. In the event of late payment, all rebates granted on the outstanding payment shall lapse and the outstanding amount shall be due in full. During the period of default, Body Products’ claim shall bear interest at the statutory default interest rate applicable from time to time for claims for payment arising from legal transactions to which a consumer is not a party (currently 9% points per annum above the base interest rate applicable from time to time pursuant to Section 288 (2) of the German Civil Code). Body Products in any case reserves the right to claim further damages caused by default. The default of the Other Party shall not affect a claim to the commercial due date interest (§ 353 HGB). In addition, Body Products shall be entitled to charge a lump sum of € 3.00 for the costs of payment collection in the event of late fulfilment of payment obligations.
(3) All payments shall – irrespective of any designation to the contrary – first be credited against the (extra) legal costs owed, then against the interest due and thereafter against the oldest outstanding invoice.
§ 6 CANCELLATION
If the Other Party wishes to cancel an agreement (before or after performance by Body Products), Body Products shall be entitled to charge 25% of the agreed net total price as a lump sum cancellation fee. Body Products reserves the right to claim any higher damages resulting from the cancellation. The Other Party shall be entitled to prove that the cancellation has not caused any damage to Body Products or a reduction in the value of the goods or that the damage is significantly lower than the lump sum. Body Products shall not be obliged to accept a cancellation.
§ 7 PROVISION / TRANSFER OF RISK
(1) The goods shall be made available at the Other Party’s registered office or at the place specified by the Other Party in the order. If the goods are collected by the Other Party from Body Products’ warehouse, Body Products shall fulfil its obligations by making the goods available at its own warehouse. Upon provision of the goods, the risk of accidental loss, damage or destruction of the goods shall pass to the Other Party.
(2) If the goods to be delivered consist of components of independent significance, Body Products shall be entitled to make partial deliveries and issue separate invoices.
(3) Body Products shall be entitled to deliver goods that deviate slightly from the agreement if this gives the other party an equivalent or better result.
(4) In the case of permanent agreements or deliveries on call, the Other Party is obliged to take delivery of the agreed quantity of goods within the agreed period and, if no explicit period has been stipulated, within six (6) months after the conclusion of the agreement.
(5) On the basis of an obligation to take delivery assumed by the Other Party, Body Products is obliged to store the goods or have them stored for at least one week for the account and risk of the Other Party and/or to consider the agreement as cancelled after seven days and to debit the account of the Other Party accordingly. If Body Products cancels the agreement, the Other Party shall be notified thereof. In the event of cancellation, § 6 shall apply accordingly.
§ 8 FORCE MAJEURE
(1) In the event of force majeure or circumstances which make the performance of the agreement impossible or unreasonable without any fault on the part of Body Products, the mutual contractual obligations shall be suspended until such circumstances have ceased to exist.
(2) “Force majeure” shall include in particular:
(Natural) disasters, general government measures (e.g. imposition of a state of emergency, curfews), war, riots, strikes, unacceptable stagnations which have an influence on the business management of Body Products and/or its suppliers.
(3) If the force majeure lasts longer than three months, both parties are entitled to dissolve the agreement by giving notice to the other party. After the dissolution of the agreement, Body Products shall nevertheless be entitled to invoice the other party for the (partial) services provided before the force majeure occurred. Termination of the agreement due to force majeure shall not entitle either party to claim damages.
§ 9 RESERVATION OF TITLE
(1) Body Products shall remain the owner of all goods until the Other Party has satisfied all present and future claims of Body Products, including statutory turnover tax and any other charges (e.g. other taxes or customs duties) arising from one or more agreements and an ongoing business relationship (retention of title).
(2) The Other Party is obliged to keep all goods recognisably as the property of Body Products and to store them separately from similar goods.
(3) As long as the ownership of a good has not passed to the Other Party, the Other Party shall neither be authorised to establish rights to the delivered goods in favour of third parties (e.g. lien, transfer of ownership by way of security) nor be entitled to hand over the goods to third parties (for use) in deviation from these terms and conditions. The Other Party shall notify Body Products without delay if and to the extent that third parties have access to the goods (e.g. demand for surrender, execution measures).
(4) In the event of a breach of contract by the Other Party, in particular in the event of non-payment of the price despite the due date, Body Products 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 return does not at the same time imply a declaration of withdrawal; Body Products shall rather be entitled only to demand the return of the goods and to reserve the right to withdraw from the contract. If the Other Party does not pay the price due, Body Products may only assert its rights if the Other Party has previously been set a reasonable deadline for payment without success or if such a deadline is dispensable under the statutory provisions.
(5) The other party is entitled to use or sell the goods in the ordinary course of business. If the goods are combined, mixed or processed, Body Products shall acquire the resulting product at full value and shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, Body Products shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods to each other. Apart from that, the same shall apply to the resulting product as to the goods delivered under retention of title themselves, i.e. Body Products’ rights (co-ownership/property) shall expire in accordance with para. 1.
(6) The claims against third parties arising from the resale of the goods or from the resale of the product created by combining, mixing or processing shall be assigned by the Other Party to Body Products here and now as security in total or in the amount of any co-ownership share of Body Products pursuant to the preceding paragraph, and Body Products shall accept the assignment. The obligations of the Other Party referred to in paragraph 3 shall also apply in respect of the assigned claims. The Other Party shall remain authorised to collect the claim in addition to Body Products. Body Products undertakes not to collect any claims as long as the Other Party has fulfilled its payment obligations towards Body Products, is not in default of payment, no petition for insolvency proceedings has been filed and there is no other deficiency in its ability to pay. However, if this is the case, Body Products may demand that the Other Party discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. If the realisable value of the securities exceeds the claims of Body Products by more than 10%, Body Products shall, at the request of the Other Party, release the securities in the amount exceeding the permissible security requirement at its own discretion.
§ 10 COPYRIGHTS / INTELLECTUAL PROPERTY RIGHTS
(1) Body Products reserves all copyrights and intellectual property rights to the drawings, models, product specifications, designs, shaping, programmes and the like made available to the Other Party. The Other Party waives all rights to which it may be entitled in this respect, even if no rights have been registered in the relevant registers (e.g. the German Patent and Trademark Register), and undertakes to use its best endeavours to prevent any infringement of Body Products’ rights by third parties. The Other Party shall not be entitled to use the aforementioned documents in any other way than to initiate the conclusion of a contract with Body Products or to execute the contract concluded with Body Products.
(2) The provision of drawings, models, product specifications, designs, moulds, programmes and the like by Body Products shall not constitute a licence or other user relationship in favour of the Other Party. The Other Party shall not be permitted to modify delivered goods in whole or in part or to mark them with another brand name, another (business) designation or other packaging, unless the agreement concluded with Body Products expressly permits this.
(3) The Other Party shall be liable for the fact that the orders or information provided by it have not or will not constitute an infringement of the rights of third parties or statutory provisions. The Other Party shall indemnify and hold Body Products harmless against all claims made by third parties in this respect.
§ 11 OBLIGATIONS TO GIVE NOTICE OF DEFECTS
(1) Immediately upon receipt of the ordered goods, the Other Party shall be obliged to inspect them for completeness as well as obvious deviations, deficiencies, damage and defects and, in such a case, to notify Body Products thereof. If (further) discrepancies, deficiencies, damage and defects become apparent within the periods pursuant to § 11 para. 3, these shall also be notified to Body Products immediately after discovery. A complaint shall be deemed to have been made without undue delay if it is made within three working days (Mondays to Fridays) after receipt of the goods or later knowledge of deviations, deficiencies, damage or defects. The reasons for the complaint must be set out in full. The Other Party shall notify Body Products of all further complaints about goods delivered and invoices issued within eight days of becoming aware of them.
(2) In the absence of a timely or proper complaint about delivered goods, the goods delivered by Body Products shall in any case be deemed to have been fulfilled and approved in accordance with the agreement upon payment of the invoice, and all claims of the Other Party in this respect shall lapse.
(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 (such as, inter alia: quantity, measure, assortment, colour, weight, execution or design) do not entitle to a complaint, if and insofar as the conditions of § 7 para. 3 are fulfilled.
(4) If a complaint has been validly lodged by the Other Party, the Other Party’s payment obligations in respect of the (partial) performance in question that have not yet been fulfilled shall be suspended. Body Products shall then subsequently perform the agreed service within a reasonable period of time, unless the Other Party wishes to cancel the agreement; an already performed (partial) service/payment shall then be credited (credit note).
(5) In the event of an unjustified or delayed complaint, the Other Party shall be obliged to reimburse Body Products for all (additional) costs and expenses incurred as a result thereof.
(6) Effectively rejected goods shall be collected and taken back by Body Products from the Other Party at its own expense and risk.
§ 12 WARRANTY / LIABILITY / COMPENSATION FOR DAMAGES
(1) In the event of defects in the delivered goods, the Other Party shall be entitled to the statutory rights arising from liability for material defects pursuant to §§ 434 ff. BGB (German Civil Code) – supplementary performance (repair or replacement), reduction of the purchase price, withdrawal from the contract or compensation for damages. However, Body Products shall first be entitled to choose between the removal of defects (rectification) or delivery of a defect-free item within the scope of subsequent performance. The choice can only be made by notification to the other party within five working days (Mondays to Fridays) after notification of the defect. In the absence of such notification, Body Products shall deliver a new item free of defects. Body Products’ right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(2) If the remedy of the defect pursuant to paragraph 1 fails or is unreasonable for the Other Party or if Body Products generally refuses subsequent performance, the Other Party shall be entitled to rescind the purchase agreement, reduce the price or claim damages or reimbursement of its futile expenses in accordance with the statutory provisions. The other party’s claims for damages shall also be subject to the special provisions set out in paragraphs 4 and 5 below. In the event of an insignificant defect, there shall be no right of withdrawal. In the event of a breach of duty other than a defect in the goods, the Other Party shall only be entitled to rescind or terminate the contract if Body Products is responsible for the breach of duty. A free right of termination shall be excluded.
(3) The Other Party’s warranty rights shall expire within one year of delivery or provision of the goods (§ 7 para. 1). In the event of a defect in a building or in an item that has been used for a building in accordance with its customary manner of use and has caused the defectiveness thereof, the Other Party’s warranty rights shall expire within five years of delivery or provision of the goods (§ 7 para. 1).
(4) Body Products shall not be liable for damage caused by a negligent breach of duty by Body Products or its legal representatives or vicarious agents. The above exclusion of liability shall not apply in the event of injury to life, limb or health or breach of essential contractual obligations (so-called cardinal obligations) which are based on a negligent breach of duty by Body Products or its legal representatives or vicarious agents, or if a defect has been fraudulently concealed or a guarantee for a specific quality of the object of purchase has been specifically assumed or the Product Liability Act applies. The cardinal obligation of Body Products is the provision of defect-free ownership of goods for the other party; the exclusion of liability pursuant to sentence 1 above shall therefore not apply in the event of damage resulting from a defect in the delivered goods.
(5) The claim for damages for the breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another case of mandatory liability pursuant to para. 4 sentence 2 is given at the same time. Liability for damages which are not typically to be expected according to the nature of the respective order and the goods and in the case of normal use of the goods shall not be assumed. Liability is also excluded for damage resulting from loss of data if recovery is not possible or is made more difficult due to a lack of or inadequate data backup.
(6) The provisions of the above paragraphs 4 and 5 shall apply to all claims for damages, irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the contractual obligation or from tort. They also apply to claims for compensation for futile expenses.
§ 13 RIGHTS OF BODY PRODUCTS
(1) Body Products shall be entitled to retain all goods to be delivered to the Other Party until all outstanding payment obligations of the Other Party have been met in full or until sufficient security has been provided.
(2) If the Other Party fails to fulfil its payment obligations (on time), is or has been dissolved, dies, has applied for or been ordered to open (also provisional) insolvency or other judicial composition proceedings against its assets, or if assets or rights of the Other Party have been seized or attached, the claims of Body Products against the Other Party shall become due immediately in their entirety. Furthermore, Body Products shall be entitled to suspend all further deliveries owed until all due claims have been met in full. If the due claims have not been met in full within four weeks after they have become due, Body Products shall be entitled, by unilateral declaration to the Other Party and without further prior notice of default or judicial intervention, to withdraw from all agreements existing between the parties with regard to any unfulfilled delivery obligations. This shall not affect the obligation of the Other Party to fulfil the due claims and claims of Body Products for compensation of all further financial and other damage resulting from the default of the Other Party.
§ 14 APPLICABLE LAW AND JURISDICTION
(1) The conclusion, content and performance of all contracts concluded with Body Products shall be governed exclusively by the law of the Federal Republic of Germany, excluding the applicability of the UN Convention on Contracts for the International Sale of Goods (CISG). The conditions and effects of the retention of title pursuant to § 9 shall be governed by the law of the respective place of storage of the goods or of the product created by combination, mixing or processing, if and to the extent that the application of German law is inadmissible or ineffective.
(2) Exclusive – including international – place of jurisdiction for all disputes arising from or in connection with the contracts concluded with Body Products (including disputes regarding the validity of contracts) shall be Cologne, if and to the extent legally permissible. In addition, Body Products shall always be entitled to bring claims at the general place of jurisdiction of the other party.
§ 15 FINAL PROVISIONS
(1) Should any provision of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
(2) Body Products shall be entitled to amend these terms and conditions. New general terms and conditions of delivery and payment shall apply as soon as the Other Party has had the opportunity to become aware of them.