1. SCOPE OF APPLICATION
These General Business Conditions (hereinafter “General Business Conditions”) shall apply between Schwan Cosmetics Germany GmbH & Co. KG (hereinafter “Schwan Cosmetics”, “we” or “us”) and its contractual partners. The General Business Conditions are applicable only to Merchants within the meaning of HGB - German Commercial Code, legal entities under public law or public special funds within the meaning of § 310 Sec. 1 BGB - German Civil Code (hereinafter “Customer”). Upon placing an order, the Customer approves and consents to the exclusive application of our General Business Conditions. Our silence as concerns any general business conditions of the Customer shall in no event be deemed as our acceptance thereof., even if such general business conditions are known to us. Our shipment of goods and/or performance of contractual obligations shall in particular not be deemed binding approval of the general business conditions of the Customer. Insofar as Merchants are concerned these General Business Conditions shall also apply to all future business transactions between the parties. All tenders, shipments and other services (hereinafter “Services”) from Schwan Cosmetics including all future Services, are made on the basis of these General Business Conditions.
2. TENDER AND CONCLUSION OF CONTRACT
Our tenders are non-binding and subject to change. Orders shall only become legally binding with our written confirmation. Documents that form part of the tender, such as illustrations, drawings, weights or measures and other technical specifications, as well as DIN, VDE or other company or inter-company standards and samples that have been consulted, are approximated values that are customary in this branch of business, unless they have been designated as binding in any order confirmation. On no account does such information represent a guarantee of quality or durability. As a result of technical progress, the goods ordered or supplied may differ from those stated on the order, particularly with regard to material, colour and design. Our written order confirmation shall prevail for the content and scope of the contract. Additional agreements, modifications, supplements etc. shall only be effective with our written confirmation.
Should delivery and/or other performance occur later than four months after concluding a contract and should thereafter any personnel or material costs or suppliers' prices increase, we are authorized to accordingly increase the contractual price.
Due to technical reasons the delivery of the ordered amount may be subject to +/- 10 % allowance of the amount ordered.
3. PRICES, TERMS AND CONDITIONS OF PAYMENT
All prices are for delivery ex works or our sales offices, including loading, but are exclusive of packaging, shipping costs and VAT, which shall also be borne by the Customer.
Our invoices are generally payable in EURO without deduction of any costs i.e. charges. Furthermore, the general terms and conditions of payment of the order confirmation shall apply. In the event of late payment, interests on arrears to the amount of 9% above the respective basic interest rate of the German Federal Bank shall be payable. Should Customer engage the services of a central accounting company, the debts shall only be regarded as settled once the payment has reached our account.
Set-offs against our claims are only permissible if the Customer can set same off against claims judicially litigated in favour of Customer or Customer claims which we have acknowledged. The same applies to Merchants as concerns claiming the right to withhold the sums named in our invoices. As concerns Merchants, the right to file a counterclaim against any payment demand being litigated is precluded.
Should Customer be in default of payment of at least two invoices, all our invoices shall become immediately payable. In such an event we may, contrary to any previous arrangements, require advance payments and securities. We are furthermore entitled, without the need to make any further statements of reason, to withdraw from any agreements with Customer, in whole or partially, as well as to claim damages.
The delivery dates stipulated by us are generally not binding.
The deliveries are FCA according to Incoterms in their most current version at the sight defined by Schwan Cosmetics.
As concerns Merchants, the liability for damages in the event of default shall be restricted to delay compensation for each completed work week of delay in the amount of 0.5% of the concerned (partial) delivery or performance, not to exceed however a maximum of 5% of such value.
We are authorized to make partial deliveries in customary quantities and upon appropriate advance advice to also make early deliveries. The dispatch of all goods for shipment shall be at the cost and risk of Customer, the latter even if free delivery is agreed upon. In the event of damaged and/or incomplete deliveries, a certification shall be made immediately after receipt. Upon delivery of the goods to the transport agents, at the latest however upon the goods leaving our works, the risk of loss, accidental destruction or damage shall transfer to the Customer. This also applies if and insofar the delivery is to be made by our own transport services. Furthermore, the same applies to the risk of delayed deliveries. In the event of default in accepting, we shall be entitled to choose whether to store the goods at the cost and risk of the Customer and to charge our own storage costs, or to charge lump-sum storage costs in the amount of 3 % of the selling price of the products for each commenced week. Customer is at liberty to prove that we incurred no damage or less damage as a result of its default. Furthermore, in the event of sustained default in accepting, we are entitled at our own discretion to offer the goods concerned for sale. This also refers to advance payments, also in the event of non-payment despite notice.
Shipping instructions of the Customer shall only be binding if they have been agreed in writing. Otherwise, we shall select what we believe to be the most suitable mode of shipment with the exclusion of all liability.
5. FORCE MAJEURE
Deliveries or performances, which cannot be undertaken or are delayed due to events of force majeure or other unforeseeable events beyond our control or unforeseeable obstacles, which we or our suppliers may suffer, authorizes us to deliver at a later point in time or to rescind the agreement in whole or in part, and Customer shall have no claim for damages in regards to same.
Such also applies should any such circumstances occur even if at such point in time we are in default in performance. In such event and should the delayed delivery be unreasonable for the Customer, the Customer is also authorized to rescind the agreement, whereby all damage claims are precluded. Should we be in default as concerns delivery or performance, Customer is authorized to set a deadline for delivery or performance of at least 4 weeks, such deadline to be reasonable in light of the production process and is authorized to rescind the agreement if such deadline is not met. The rescission must in every case be made in written form. Should the non-performance be restricted to partial delivery or partial performance, the right to rescission shall also be restricted to such concerned part, insofar as such restriction of the right to rescission would not upon objective review affect the overall contract.
An event of Force Majeure under this clause shall mean an external event, introduced from the outside by elemental forces or by actions of third parties, that is unforeseeable by human judgement and experience, which cannot be prevented or rendered harmless with economically bearable means even with the utmost care that can be reasonably expected according to the circumstances, and which must not be accepted by the company because of its frequency like. In particular Force Majeure includes but is not limited to war, terror act, administrative order of a public authority, pandemic, epidemic, malfunctions, strikes, lock outs, go slows, transportation obstacles and any other unpredictable obstacles.
6. PACKAGING, BRANDS, PROPRIETARY RIGHTS
Customer shall be solely responsible for observing and complying with all packaging regulations, product identification, labelling obligations and notice requirements. Customer shall be liable for ensuring that no infringement of third-party rights occurs in conjunction with his order and shall undertake to release us from any claims raised by third parties.
The same applies to artwork and design of the goods, as well as to the desired marketing, including marketing claims. Furthermore, this also applies to cases where the Customer has received from Schwan Cosmetics any materials or underlying information.
When ordering goods that, at the request of Customer, are given the symbol or logo of the Customer or of a third party, the Customer shall assure that he has unrestricted right of use. Should third parties nevertheless assert a claim, the Customer must release us immediately from these claims.
7. WARRANTY, LIABILITY
The following regulations apply to our warranty and other liability with regard to defects in supply or performance, including defective deliveries or services. We should be notified in writing of any complaints with regard to our deliveries or services, including defective deliveries, within one week of receipt of the goods or performance of the service or, in the event of hidden defects, within one week of detection of the defect, provided that Customer is a Merchant. If obvious defects are not notified or if they are not notified in time or in the proper manner, the warranty shall become invalid in this respect. In addition, §§ 377 et seq. HGB - German Civil Code shall apply.
Should the delivered goods be repaired or modified without our assistance or should our instructions for use or storage not be observed, our warranty shall become void. Should we use components supplied by Customer, our liability shall only extend to assembly and to those components which we supply. Should we manufacture products for the Customer according to the Customer‘s advice, instructions, formulas, requirements, trademarks, packing material, etc., and/or printing documentation, we shall only be liable for our own workmanship. Should we be liable to third parties for damages not attributable to our workmanship but rather to a fault attributable to Customer, Customer shall indemnify and release us from any such damage claims. Our liability for damages which are attributable to our suppliers, sub-contractors, or other such parties, shall be restricted to assignment to the Customer of those damage claims we would have against such supplier, sub- contractor, or other party; in such instances our liability shall only be secondary.
Unless explicitly otherwise agreed, we shall not be liable for any colour deviations of the supplied goods in comparison to any visualizations or received colour samples, also in electronical form or available at our web site. Such samples may vary depending on the monitor or printer. Colour samples and visualizations are provided only for orientation and information purposes. Furthermore, such cases do not constitute grounds for withdraw or complaint. In the event of justified notices of defects, the Customer is first entitled to request the remedy of the defect. At our own discretion, we shall decide whether to re-supply the goods or to remedy the defect. Furthermore, in the event of the failure of the attempt to remedy the defect, we shall be entitled to attempt to remedy the defect a second time. Should the second attempt to remedy the defect or to re-supply the goods fail, the Customer shall be entitled to withdraw from the contract or to a price reduction right to the value of the defect. For all cases of legitimate defects any and all claims above and beyond those of repair or replacement (for example damage claims based upon the warranty or breach of contract, negligent contractual negotiations or carelessness, or based upon impossibility, delay, mistake or failure to repair or make replacement delivery) shall be restricted to intentional and gross carelessness. Customer must prove the amount of damage incurred and the reason for the damage. The same applies to expenses incurred to no avail. Statutory claims under Customer’s right of recourse that are raised against us shall only be upheld to the extent to which Customer has not reached any agreements with his buyers that go beyond the statutory warranty claims. Any liability for lost profit or image loss is excluded.
In the event of divisible deliveries or performances or if the defect only affects parts of a functioning unit, the right of recourse shall be limited to the part affected. The assertion of warranty claims shall not affect the payment obligations and payment deadlines of Customer. Should Customer not fulfil his payment obligations or not fulfil same in a timely manner, our aforesaid obligation shall be suspended until fulfilment of such payment obligations. Our maximum liability in the event of legitimate defect claims shall be limited to the value of the goods in question.
The warranty period or the period of limitation for merchants is 12 months from the transfer of risk or, in the event of service contracts regarding untenable items, from initial commissioning, and no later than 24 months after delivery or performance. This does not apply in cases where statutory regulations, according to § 445 b BGB / German Civil Code stipulate longer deadlines. In the case of delivery items that, due to their material nature or type of use, have to be used prematurely, the warranty shall only apply for the standard period in the individual case. In any event, the Customer has to prove that the defect was present at the time of delivery.
8. RESERVATION OF TITLE
We shall retain ownership of the goods delivered until full payment of any and all payment claims we have against the Customer based upon our business relationship, inclusive of future claims (regardless of the legal basis, and thus including any possible claims upon bank drafts or claims obtained through assignment from third parties). If a current account is maintained, this collateral shall also be deemed collateral for the respective balance due.
Should the Customer require sole or joint ownership in goods which have been mixed, incorporated or processed with our goods, we are entitled to an ownership interest in such goods which corresponds to the ratio of our goods to such related goods. Any such processing or incorporation according to §950 BGB occurs to our benefit without any liability on our part. In the event of a conflict of this clause with business conditions of other suppliers of other components used, such processing shall occur jointly for all and our ownership portion shall correspond to the ratio of our goods versus those of other suppliers. The protection of our interest shall in all cases be undertaken at no cost to us. The value of our delivery is calculated according to our price per unit including VAT and without any deductions.
Until payment by the Customer of all the amounts due from our business relationship, the resale or encumbrance of our delivered goods or for those goods in which we have an ownership interest is prohibited. A resale is prohibited unless the Customer acquired such goods for the purpose of resale. In such case the Customer is revocably authorized to resell the goods in which we have an ownership interest within the scope of Customer's normal business activities insofar as the accounts’ receivables of Customer from such resale is assignable to us. In the event of resale of the goods in which we have an ownership interest, the Customer assigns to us any and all payment claims and collateral claims the Customer has based upon such resale in the amount of the value of the goods delivered by us to Customer. We accept the assignment of such claims. This also applies to those cases where a resale was not permitted pursuant to the above limitations. The Customer is also revocably authorized in cases of such assignment to collect payment. Our right to directly collect such payment remains unaffected. We are authorized in the name of the Customer to inform any third-party debtor of this assignment of claims. Our taking possession of the goods in which we have an ownership interest is not be deemed a rescission of the contract. A rescission shall only occur if we expressly declare such in writing. We shall have no obligation to grant time extensions before taking possession of such goods. In the event that our security interest based upon our retention of title exceeds the value of the assigned claims by more than 20%, we shall release such excess security upon demand.
The Customer is precluded from assigning any contractual rights under this contract.
10. CODE OF CONDUCT
Our Code of Conduct in its currently valid version is known to the Customer. With acknowledgement of our Code of Conduct the Customer undertakes to fully comply with its regulations.
The current version of the Code of Conduct will be provided upon request and is also available online (https://www.schwan-stabilo.com/documents/SH_CodeofConduct_englisch.pdf).
Should the customer violate this regulation and not cure such violation within an appropriate deadline set by us, we will be entitled to a rescission of the whole contract.
11. PROCESSING DATA AND DATA PROTECTION
Data necessary for performing the contract shall be processed in accordance with the GDPR and other applicable regulations. For more information on data protection, please refer to our Information on Data Protection (https://www.schwancosmetics.com/information-on-data-protection).
12. PLACE OF PERFORMANCE AND JURISDICTION
Place of performance for all deliveries and payment is Heroldsberg. Place of jurisdiction is Nuremberg. We are however entitled to file court action against the Customer with the court having jurisdiction at Customer's place of business and/or domicile. For cross-border deliveries in particular, the contractual relationship is subject to German law under the exclusion of the CISG.
13. FINAL PROVISIONS
Schwan Cosmetics reserves the right to amend or supplement these General Business Conditions, if such amendment or supplement is necessary from our point of view and will provide the Customer with the modified version, which shall completely replace the present version of the General Business Conditions. This also refers to any previous versions of the General Business Conditions. Any orders placed by the Customer prior to the amendment or supplement of the General Business Conditions shall be carried out on the basis of the General Business Conditions valid at the time of placing such order. Any oral agreements between Schwan Cosmetics and the Customer in order to be binding require to be made in writing and must be confirmed by Schwan Cosmetics. Written notifications may also be made by facsimile, email or otherwise electronically. Should one or more of the aforesaid provisions be invalid in whole or in part, such shall not affect the validity of the remaining provisions of the contract or the contract itself. Schwan Cosmetics and the Customer expressly commit to agree on a regulation which comes as close as possible to the commercial intentions. The same shall apply in the event of regulatory gaps in these General Business Conditions.