1. The contract concluded between the Client and us, the ongoing business relationship and all offers are based on the following terms and conditions.
The following terms and conditions do not apply if a natural person concludes a contract with us for a purpose that cannot be classified as part of that person’s commercial or independent professional activities (a consumer as set forth in section 13 BGB [Bürgerliches Gesetzbuch, German Civil Code]).
2. Divergent terms and conditions of the Client are invalid, including in particular if we do not expressly object to such terms and conditions.
3. Furthermore, in the event that individual portions of these terms and conditions prove invalid, the rest of the terms and conditions remain binding.
4. Within the substantively relevant scope of application, the Vienna UN Convention on the International Sale of Goods of 11 April 1980 (CISG) applies, which is in addition modified by individual contractual agreements and these terms and conditions. Furthermore, substantive civil law of the Federal Republic of Germany shall apply to all legal matters.
II. Offer and acceptance
1. Offers shall be made exclusively in writing. The Client making the offer is bound to its offer without any possibility of revocation 14 calendar days after issuance.
2. We always confirm acceptance of a contract in writing by mail or electronically unless delivery or invoicing takes place immediately.
3. Subsequent changes to the order or divergent statements of acceptance by the Client require our express consent and entitle us to corresponding changes to the contractual conditions thereby affected.
4. If we become aware subsequently of circumstances that make the Client’s creditworthiness appear doubtful, we may make further processing of the order or delivery subject to an advance payment or withdraw from the contract. If the Client makes advance payments, it may request a contract guarantee issued by a bank or withdraw from the contract.
5. The conclusion, any change to or the cancellation of the contract must occur exclusively in writing, with telex, teletex and fax sufficing for this written form requirement.
1. Our prices indicated in the offer apply with the proviso that the order data on which the provision of the offer is based must remain unchanged. The prices offered are net prices in euros and do not include the statutory value added tax. The prices apply ex works and do not include packaging and shipping costs or freight, insurance or postage, unless expressly agreed otherwise.
2. Changes subsequently requested by the Client will as a rule be billed to the Client.
3. Increases in manufacturing costs attributable to increases in the price of materials or wages may be passed on.
IV. Industrial property rights
1. The operating equipment we use to manufacture the product that is the subject of the contract, in particular films, printing blocks, lithographs, printing plates, standing type and tools, remains our property and will not be provided, even if it is billed separately.
2. The Client is solely responsible for checking reproduction rights as well as copyrights for documents the Client makes available. Accordingly, the Client shall indemnify us from and hold us harmless against all third-party claims.
3. For samples, sketches, designs etc. expressly ordered (or assigned) by the Client, the agreed remuneration must be paid, even if the order is not placed. Ownership and full right of disposal pass to the Client after payment of the remuneration. We may make documents, sketches, plans, etc. accessible to those third parties to whom we have conveyed deliveries or services in a permissible manner.
4. In the event that we deliver goods to other countries or the Client has designated such goods for delivery to other countries, we take no responsibility for any patent, trademark, exploitation or other copyrighted industrial property rights that may exist outside of the Federal Republic of Germany in opposition to the use or purpose of the goods intended by the Client.
1. The delivery shall take place at the Client’s expense and risk, even if we bear all or part of the shipping costs.
2. An agreed delivery period begins with the day all details are conclusively clarified (in particular, for labels and wrappers, etc., the final printing and/or production approval issued by the Client) or when the order confirmation is sent out.
3. If we have sent out the goods on the last day of the agreed period, the delivery deadline shall be considered as having been met.
4. In the event of a subsequent change to the order, the originally approved and confirmed delivery period shall be extended accordingly. If the delivery is delayed for reasons that are the Client’s responsibility, the deadline shall be considered met if readiness for shipping is announced within the agreed period.
5. We are not responsible for the consequences of delayed deliveries when they are due to natural disasters, governmental measures, materials shortages, operational disruption, traffic difficulties, strike, lock-out, other operational interruptions, war, lack of suitable transport resources or supply services or other circumstances outside of our operational purview or when they are attributable to a disruption of the operational process that we cannot control by taking appropriate measures. In such a case, we are entitled to extend the agreed delivery period appropriately; we shall inform the Client without delay about the temporary lack of availability. Both parties reserve the right to declare cancellation of the contract as established by legal provisions.
6. Furthermore, a missing delivery only entitles the Client to legal remedies of any kind after the Client has given us an appropriate subsequent deadline in writing. Claims may only be derived from missed deadlines for processed orders if written notification has been given, no later than 2 weeks prior to the end of the agreed delivery period, about any damages due to the delay.
7. Unless agreed otherwise, on-call orders must be accepted within 6 months of the order confirmation date. Quantities of a specially manufactured product that have not been accepted by the deadline will be delivered following notification and invoiced with inclusion of additional storage costs. For generic goods, we may require advance payments, including for additional storage costs, after 6 months from the order confirmation date. If the Client does not make the advance payment within 2 weeks despite being requested to do so, we are entitled at our discretion either to insist that the goods be accepted and bill for them or to carry out a substitute sale and assert a claim to the difference in profit or to withdraw from the Contract or to assert a claim for damages due to lost profits. If we file a claim for damages, lump-sum indemnification in the amount of 15% of the order total shall be considered agreed upon. Our right to file claims for further damages based on the provision of evidence shall remain unaffected. The Client has the right to prove that no damages, or no damages in that amount, occurred.
8. If the Client is in default with respect to acceptance, storage fees in the amount of 0.5% of the invoice amount may also be billed to the Client, starting one month after notification of readiness for shipment, for each month or partial month; the storage fees are limited to 4% per year. We may invoice for higher fees, if and when we provide proof thereof. The Client has the right to prove that no storage fees, or no storage fees in that amount, were incurred.
9. We are entitled to make partial deliveries and are as a rule not obligated to take out transport insurance. The Incoterms 2000 of the International Chamber of Commerce Paris apply exclusively for the delivery terms “EXW, FAS, FCA, FOB, CFR, CIF, CPT, CIP, DAF, DES, DDU, DEQ, DDP”.
VI. Packaging and shipping
1. We guarantee proper and industry-standard packaging and carry out shipment with the necessary care, but are liable only for intent or gross negligence.
2. Shipping dates are binding only if we provide express written confirmation.
3. Deliveries worth up to 250 euros are not prepaid. Deliveries worth more than 250 euros are free to the place of receipt, including packaging.
4. Packaging materials will be accepted for return as agreed.
5. If the Client sends goods back to us, then the customer is responsible for observing correct marking of the returns with respect to laws pertaining to hazardous items. Assistance in marking returns can be found on our website at www.schumacher-online.com
VII. Notes for our suppliers
1. The supplier undertakes to comply with the requirements of Regulation (EC) 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), to the extent they are relevant for the supplier.
Dr. Schumacher GmbH shall ensure that it likewise complies, based on the supplier’s data, with the requirements of that regulation.
2. The delivery address for chemical raw materials to be sent to the Malsfeld location is: Zum Steeger 3, 34323 Malsfeld. Trade and finished goods as well as packaging materials including boxes should be delivered to the following address: Am Roggenfeld 3, 34323 Malsfeld.
For all products, we reserve the right to over- or under-deliver by up to 10% of the ordered amount and bill for the actual amount delivered.
All packages may only be supplied in an unopened state. Individual sales of portions of an institutional pack are not permitted. Our packages may only be delivered to other countries, including free ports, with our written consent.
X. Materials and execution
Barring special instructions from the Client, orders are carried out with industry-standard materials and in accordance with known manufacturing processes within the Federal Republic of Germany. In the case of bulk material and/or Client packing processes with special characteristics, the Client must inform us expressly and in writing about the relevant requirements and must make relevant agreements. This applies in particular with regard to legal requirements of the relevant state, such as pharmaceutical laws.
XI. Reservation of proprietary rights
1. We retain ownership of the delivered goods until all existing and future receivables have been paid. If invoices from ongoing deliveries are settled with a bill of exchange or paid by cheque, then we retain ownership until the time of encashment. We reserve the right, if needed, to collateral corresponding to the value of the receivable to be secured. We agree to release the collateral due to us in this context if its value exceeds the amount of the receivable to be secured by more than 10%.
2. The Client is entitled to dispose of the goods within the scope of ordinary business transactions, in particular to process and sell them. In the case of resale of the delivered goods prior to final payment, the purchase price receivable shall pass to us immediately and without any special conveyance thereof. Any processing, mixing or transformation shall be considered to have been performed on our orders, meaning that we will be entitled to any resulting jointly owned property.
3. Unusual orders such as the pledging of collateral, assignments as security, etc. are permissible only with our consent. The Client must notify us without delay of any access by third parties to delivered goods that are subject to proprietary rights (e.g. seizure by other creditors).
XII. Claims for defects
1. For the delivered goods, we guarantee that we will, at our discretion, either repair goods in which defects are found or replace them at no cost with new items; in the latter case, the defective goods must be returned to us. If repair is not possible owing to the type of the goods and if delivery of a replacement, particularly in the case of custom products, is not possible, then the Client may request a reduction in the fee or cancellation of the contract.
2. For commission orders, no guarantee is provided concerning the composition of the materials that are provided or any resulting defects in the goods.
3. Defects in a portion of the delivery may not give rise to objections to the entire delivery provided it is possible to separate intact from defective goods by taking reasonable measures. In such cases, only a reduction in fees or, in so far as the goods are objectively without value for the Client, cancellation of the contract may be requested, but not compensation for damages.
4. The Client is obligated to investigate goods that are supplied when they actually become available. Infringements of the contract must be reported to us in writing with an exact description of the type and scope of the goods affected by the defect. The notification of defects must take place promptly and must be provided within 7 working days after actual availability of the goods for the Client. So-called hidden defects may only be reported within a period of 6 weeks after delivery, unless shorter notification periods apply pursuant to section 377 HGB (Handelsgesetzbuch, Commercial Code) of the Federal Republic of Germany. We must be given an opportunity to examine the alleged defects on site.
5. Improper storage by the Client shall preclude any compensation for damages.
6. The Client must grant us an appropriate period of time in which to rectify defects. If it refuses to do so, we are released from liability for any defects. If an appropriately determined deadline passes without rectification having occurred, the Client may request cancellation of the contract or a reduction in the fee. Within the substantively relevant scope of application of the Vienna Sales Convention, the assertion of claims for damages is additionally precluded, as is the assertion of the right to withdraw from the contract. Furthermore, claims for compensation for damages may only be asserted in the case of intent or gross negligence. Compensation for indirect damages, e.g. due to lost profits or substitute purchase, is precluded.
7. If delivery becomes impossible for us, or the service becomes impossible for the Client, the following provisions apply.
If we are at fault for that impossibility, the Client is entitled to request compensation for damages in the amount of 10% of the value of the portion of the service or delivery that has become impossible. Further claims by the Client for compensation for damages are precluded unless we are responsible owing to intent or gross negligence. The Client’s right to withdraw from the contract remains unaffected. Within the substantively relevant scope of application of the Vienna Sales Convention, the assertion of claims for compensation for damages is additionally precluded, as is the right to withdraw from the contract.
8. In the event that circumstances arise for which we are not responsible pursuant to number V. and that significantly alter the economic significance or the content of the delivery and service or affect our operations in a significant manner, the contract will be appropriately adapted, provided this can be done in good faith. Should that not be economically feasible, we are entitled to withdraw from the contract. If we make use of that right, we shall notify the Client thereof without delay after recognizing the scope of the event’s effects, even if an extension of the delivery period was initially agreed upon with the Client.
9. For all other potential claims by the Client for compensation for damages, liability is limited, for us and our agents, to cases of intent and gross negligence. Within the substantively relevant scope of application of the Vienna Sales Convention, claims by the Client for compensation for damages are excluded if the Client asserts its right to withdraw from the contract.
1. Unless there is some other agreement, conditions of payment are 10 days after the invoice date with a 2% discount, direct debit with a 3% discount or 30 days net.
2. Payments shall be considered as having been made if the financial institution credits them within 10 or 30 days after the invoice date or if the payment due date set forth in an individual contract has been observed.
3. Payments shall be made without any deductions and free of bank fees to our place of payment.
4. Failure to meet the payment deadline shall result in the Client being considered in default without any reminder being required. In the case of default, we are entitled, subject to any other claims, to invoice for default interest at the respective interest rate billed to us by our banks for overdrafts, but at least at the statutory interest rate of the state in which the Client has its main registered office.
5. Bills of exchange and cheques will be accepted only on account of performance. Payment by means of a bill of exchange requires a special agreement. The client must bear, and pay there in cash, any interest and fees for discounting or collection of bills of exchange and cheques.
6. Any failure to comply with payment conditions that arises from circumstances due to significant deterioration in the Client’s assets situation and that does not become known to us until after conclusion of the contract shall result in all receivables becoming due immediately, including in the case of a deferral. In the event that in such a case bills of exchange have not yet been redeemed, we nevertheless have an immediate claim to cash payment.
7. Offsetting against our claims is permissible only with undisputed or legally ascertained receivables.
8. In the event that the parties agree upon letters of credit, the Uniform Customs and Practice for Documentary Credits, the “UCP 500” of the International Chamber of Commerce Paris in the respective most recent version, excluding Article 41, shall apply to interpretation of the agreements.
XIV. Change in the basis of the contract
Events that change the purpose of the contract decisively, in whole or in part, whether they affect the Client or our deliveries, entitle us to adapt the contract in whole or in part to the changed circumstances without claims for indemnification.
XV. Place of execution and court of jurisdiction
1. The place of execution for all reciprocal contractual obligations is Melsungen.
2. The courts in Melsungen have exclusive jurisdiction locally and internationally for all contractual and non-contractual disputes arising from this contract or the ongoing business relationship. This jurisdiction excludes all other legal jurisdictions unless they themselves are exclusive. In particular, the Client is not authorised to assert a counterclaim, set-off or withholding against us before any court other than that with exclusive jurisdiction or to take us to court outside of the Federal Republic of Germany for third-party proceedings and/or warranty enforcement complaints.
3. We are, however, entitled in an individual case to also file a complaint at the location of the Client’s registered office before other courts with jurisdiction pursuant to domestic or foreign law.
Valid as of: March 2011
© Dr. Schumacher GmbH