These GTC apply to all business transactions, where applicable, between KTN Dr. Neuberger GmbH (SUPPLIER) and its customer (BUYER). Clauses agreed in individual contracts within the contractual relations have priority over the GTC. In the event of individual clauses being invalid, the remaining clauses remain valid. Our GTC are exclusively in effect and the BUYER agrees with these GTC at placing of orders. The GTC are valid for future orders as well even if it is not explicit indicated, but the BUYER received it with one of our confirmation of order. If an order will be placed deviating from our GTC, also in that case our GTC are valid exclusively, even if we do not disagree. Deviations are only valid if we confirmed it expressly in writing.
1. Order and acceptance of order
All purchase orders which are passed by the BUYER to the SUPPLIER directly or via sales representatives must be accepted by a written confirmation of order. The written confirmation of order can be replaced by delivery of the ordered merchandise.
2. Delivery period
In the event that a delivery date is mentioned in the order or it was agreed or it is necessary, the following applies:
The delivery dates mentioned by the SUPPLIER are not binding unless they have been expressly confirmed by the SUPPLIER in writing as “binding delivery date”.
Apart from that, the BUYER is entitled to claim further rights only in the event of default for which the SUPPLIER is liable, after an additional period of at least three weeks set by the BUYER after the occurrence of default has passed without success.
The delivery date determined in the contract or otherwise can shift if the SUPPLIER is dependent on the participation of the BUYER in order to carry out the order (e. g. EAN code which has to be provided, other graphical elements) and if delays result hereby which the SUPPLIER is not responsible for and if the SUPPLIER is not able to carry out the order in due time and according to the common process of events.
All other legal time slots and deadlines with regard to cooperation can shift or be extended, insofar as the BUYER does not fulfil the relevant existing duties to collaborate and thus causes a handling delay for the SUPPLIER.
The shipment of the ordered merchandise shall be effectuated from the SUPPLIER’s headquarters and at his own expense. In absence of specific agreements, the SUPPLIER has the free choice of the haulage contractor and the means of transportation. In any event, the passing of the risk shall be transferred to the BUYER at the departure from the headquarters of the SUPPLIER, even in case the shipment is agreed carriage paid.
If not otherwise agreed, the supply of the goods will be CPT (Incoterms 2010).
Should the delivery be delayed due to reasons within the BUYER’s responsibility, the passing of the risk shall be transferred to the BUYER already at the time of the preparation of the departure. The costs incurred due to the delay (in particular warehouse expenditures) must be borne by the BUYER.
The BUYER can only distribute products to countries, which are authorized by the SUPPLIER.
The BUYER commits to exchange Euro pallets delivered with the same number and quality of empty Euro pallets.If pallets are not exchanged due to any Reasons caused by the BUYER, the supplier is entitled to charge €22.50 for each non-exchanged pallet.
No returns shall be accepted with the exception of claims of statutory rights of warranty.
5 Quality of products / Test reports
The merchandise delivered meets the statutory requirements set forth by the EC Cosmetics Directive 1223/2009; both in its composition as well as its appearance are marketable in the territory of the European Union and countries with comparable cosmetic regulations. In the event of BUYER specific policies regarding the use respectively the non-use of certain ingredients which lawfully can be used within the EU, no such policy can be cited as cause of cancellation of an order.
In principle, the SUPPLIER does not provide any documents, technical drawings, ingredient declarations, test reports, PIP, etc. to the BUYER. The BUYER can order test reports of third party laboratories for items of a new collection together with the placing of the order. Belated requests for test reports after placing the order will be declined. The cost for testing will be charged to the BUYER. In the event of the BUYER placing the order after receiving test reports, the delivery time will extend by the duration of the respective tests.
6 Statutory warranty
In case the BUYER is a merchant, he bears the usual special obligations of examination and complaint. The BUYER is obliged to check the delivered merchandise immediately for obvious defects which are immediately noticeable by an average customer. Obvious defects include e.g. easily visible damages of the merchandise. This also includes cases in which different articles or an insufficient quantity is delivered. Such obvious defects must immediately be notified in writing to the SUPPLIER, but no later than five days after reception of the delivery.
Defects which only become apparent later must also be notified in writing to the SUPPLIER immediately but not later than eight days after their detection by the user.
In case the SUPPLIER accepts a return due to an ascertained defect, the original delivery receipt has to be returned together with the returned merchandise, with the delivery receipt stating a check mark.
In case of a violation of the obligation of examination and complaint, the merchandise subject to the concerned defect is considered as accepted.
The BUYER must grant the SUPPLIER an appropriate delay for supplementary performance.
The supplementary performance can, at the choice of the BUYER, take place through removal of the defect or the delivery of new merchandise. In case the SUPPLIER chooses the supplementary performance, a reduction of the purchase price or the cancellation of the order are excluded.
After the second unsuccessful attempt, the supplementary performance shall be deemed as failed. In that event the ordering party can, at its choice, require a reduction of the purchasing price or cancel the order.
The BUYER can claim compensation for damages from defects only according to the following conditions in case the supplementary performance has failed. The BUYER’s right to claim further compensations for damages according to the following conditions remains unaffected by this.
The SUPPLIER bears unlimited liability according to the legal regulations for damages to the life, physical integrity and health due to gross negligence or intentional violation of obligations by himself, his legal representatives or agents and for damages included in the liability according to the law on product liability as well as for all damages arising from breaches of contract due to intent or gross negligence and malevolence of the SUPPLIER, his legal representatives or agents.
The SUPPLIER is also liable for damages caused by simple negligence, if this negligence concerns the violation of substantial contractual obligations or a cardinal contractual duty. The same applies if the ordering party is entitled to compensatory damages instead of the performance. However, the SUPPLIER is only liable insofar as the damages are typically linked to the contract and predictable. A further liability of the SUPPLIER is excluded, regardless of the legal type of the claim
The period of warranty follows the legal regulations.
7 Liability for breach of obligations; limitation of liability
Compensatory damages instead of performance as well as damages from delays are limited to the negative interest; compensatory damages for insufficient performance are limited to the amount of the purchase price. Compensatory damages instead of performance with exclusion of the performance obligation (impossibility) are excluded.
In case the BUYER is solely or mainly responsible for circumstances which would entitle him to cancel the order or if the condition justifying the cancellation of the order has occurred during an acceptance default of the BUYER, any cancellation of the order is excluded.
The price calculation is made from the registered office of the SUPPLIER in Euros plus the valid value added tax.
9 Terms of payment – cash discount
The SUPPLIER is entitled to cede the claims from the business relationship.
Unless contractually otherwise agreed, all invoices of the SUPPLIER have to be paid with the term of payment 30 days net cash,
Disagreements with regard to credits are not a reason for retention of due payments.
If the term of payment has been exceeded and after a reminder has been issued, default interest of 4 percentage points above the corresponding basic interest rate of the European Central Bank will have to be paid on the invoice amount.
A charging through the BUYER with counterclaims is excluded, unless the counterclaims have been determined in an indisputable and legally binding manner. The assertion of a right of retention by the BUYER is excluded, unless it is based on the same contractual relationship or the counterclaims have been determined in an indisputable and legally binding manner.
All claims of the SUPPLIER against the customer, no matter from which legal relationship, will become immediately due for payment, if circumstances are realised which entitle the SUPPLIER to withdraw according to legal or contractual provisions.
If the BUYER is in delay with any payment obligations due to the SUPPLIER, all existing debt claims will become due immediately.
10 Reservation of title
All goods delivered by the SUPPLIER remain the latter’s property until the complete payment of the purchase price has been effected and until the complete settlement of all demands resulting from the business relationship (extended retention of title) have been made.
A disposal of whatever nature on the goods being under retention of title by the BUYER is only allowed in the regular business transactions of the BUYER. However, in no case are the goods allowed to be transferred to the third parties as security within the framework of the regular business connections.
In the case of the sale of the goods in the regular business transactions the paid purchase price takes the place of the goods. The BUYER transfers all claims arising from a possible disposal to the SUPPLIER. The BUYER is entitled to collect these claims as long as he meets his payment obligations towards the SUPPLIER.
Considering the prolonged retention of title (assignment in advance of the relevant purchase price claim) a transfer to third parties, especially to a credit institution, is contrary to contract and thus inadmissible.
The SUPPLIER is entitled at any time to check the sales documents of the BUYER and to inform the latter’s customer of the transfer.
If the claim of the BUYER from the resale has been included in a current account, the BUYER hereby also transfers his claim from the current account towards his customer to the SUPPLIER. The transfer is effected in the amount which the SUPPLIER had passed to the BUYER’s discount for the resold goods subject to retention of title.
In the case of a seizure of the goods at the BUYER, the SUPPLIER immediately has to be informed on the fact that the seized goods are the goods delivered by the SUPPLIER and subject to retention of title; this has to be done by sending a copy of the record of compulsory execution and an affirmation in lieu of an oath.
If the value of the securities according to the preceding paragraphs of this number exceeds the amount of the claims which are hereby secured but are still open by more than 20 %, the BUYER is entitled to require the release of securities from the SUPPLIER according to the level of exceedance.
The enforcement of the rights of the SUPPLIER from the retention of title does not release the BUYER from his contractual obligations. The value of the goods at the time of withdrawal is only credited against the existing claim against the BUYER. The SUPPLIER is entitled to assert his rights from the retention of title – especially the withdrawal of the goods which have been delivered under retention of title – without asserting a prior rescission from the corresponding sales contract.
11 Right of withdrawal of the SUPPLIER
The SUPPLIER will be entitled to withdraw from an order for the following reason:
If – in contrast to the assumption existing before the conclusion of the contract – the BUYER is not credit-worthy. Lack of creditworthiness can be assumed in a case of protest against bills of exchange or cheques, the suspension of payments by the BUYER or an unsuccessful execution of payment attempt of the BUYER. This does not necessarily have to involve relations between the SUPPLIER and the BUYER.
If the BUYER turns to have given incorrect information with regard to his creditworthiness and this information is of considerable importance.
If the goods being under retention of the SUPPLIER are being sold other than in the regular business transactions of the BUYER, especially by means of chattel mortgage or pledge. Exceptions can only be made insofar as the SUPPLIER has given his written consent to the sale.
If individual provisions of these general terms and conditions are ineffective or prove to be ineffective, the remaining provisions will keep effectiveness.
Other oral additional agreements are ineffective insofar as they have not been confirmed in writing.
13 Place of performance and general jurisdiction
According to the SUPPLIER’s choice, the place of performance is either the registered office of the SUPPLIER or Frankfurt am Main, Germany. The Court of the district where the SUPPLIER has its registered office has exclusive jurisdiction over any disputes arising between the parties. However, the SUPPLIER is entitled to choose the Court of Frankfurt am Main.
In every case, especially in the case of cross-border deliveries, the legislation of the Federal Republic of Germany applies especially the Bürgerliches Gesetzbuch [German Civil Code] and the Handelsgesetzbuch [German Commercial Code], with the exclusion of the application of the UN Convention on the International Sales of Goods.