These GTCT shall apply to any and all deliveries and deliverables between us and the customer associated with it, provided that the customer is a an entrepreneur (“Unternehmer” as defined in Section 14 of the German Civil Code – BGB), a legal entity under public law (juristische Person des öffentlichen Rechts) or a special fund under public law (öffentlich-rechtliches Sondervermögen). These GTCT shall apply exclusively. United Brands 24 GmbH does not accept any contrary, deviating, or supplementary terms and conditions – including but not limited to terms and conditions of purchase – of the customer, unless we have explicitly agreed to their application in writing in the individual case. This requirement of approval shall apply in every case, even if we carry out the supply of goods or performance of deliverables or accept payments without reservation while being aware of the customer’s general terms and conditions.
These GTCT apply to any and all future transactions with the same customer without us having to point them out in every individual transaction.
2. Delivery and Delivery Period
Our delivery shall be subject to the correct and punctual delivery by the sub-supplier.
Where line or batch products, goods of the same kind and quality will be delivered to perform the purchase contract. Minor discrepancies in texture and colour shall be deemed customary to the trade.
Where acts of cooperation of the customer are required for performance of our deliverables, delivery, execution or completion periods shall only begin when the act of cooperation has been performed.
Discrepancies in the texture or design of subsequent deliveries are unavoidable. Brochures, sketches and measurements are approximate and non-binding. We are entitled to make partial deliveries. We are obliged to comply with the agreed delivery periods.
Where the agreed date of delivery is exceeded by more than four weeks, the customer has the right to set a grace period of at least four weeks. If the order is still not executed, then the customer may rescind the purchase contract in writing. The aforementioned deadlines shall be waived only with an explicit agreement in writing.
Shipment shall be free of shipping and free of packaging charges within Germany for a net goods value over 300 euros. Below this amount, shipment and packaging costs shall be charged per package.
Shipment abroad shall be charged based on expenditure.
The customer shall inspect the goods after delivery without undue delay and report any material defects, wrong deliveries or deviations in quantity in writing without undue delay, but no later than within one week after delivery; otherwise, the shipment shall be deemed not objected to. For partial deliveries, this obligation of the customer shall refer to each partial quantity. The customer shall complain about hidden defects without undue delay after detection of the defect, but no later than within 12 months after delivery. Taking back delivered goods shall, as a rule, be excluded, unless such goods have been wrongly delivered and/or not been ordered.
A complaint does not give the customer the right to withhold due payments or to refuse acceptance of further deliveries.
We shall be liable for damages regardless of the legal grounds in the following cases only:
• In the event of intent,
• For gross negligence, while liability for gross negligence shall be restricted to the foreseeable damage that might typically occur under such a contract,
• In the event injury to life, limb or health in the form of a guarantee
• In the event of liability based on the German Product Liability Act (Produkthaftungsgesetz),
• For culpable breach of a fundamental contractual obligation.
Contractual and non-contractual claims of the customer for damages due to our slightly negligent breach of obligation, our executives (leitende Angestellte) or our other persons used to fulfil our obligations (Erfüllungsgehilfen) shall be excluded. This shall not apply where an obligations has been breached that is of fundamental importance for accomplishing the purpose of the contract; our liability shall, however be restricted to the foreseeable damage that might typically occur under such a contract. The limitations shall not apply to damages from injury to life, limb or health. Any mandatory provisions on liability provided by law shall remain unaffected.
5. Retention of Title
The delivered goods shall remain in our ownership until the customer has paid any and all claims, i. e. the purchase price including any and all ancillary costs that have arisen from the relevant delivery. The customer shall store the goods with the due diligence of a prudent businessman (Sorgfalt eines ordentlichen Kaufmanns) and bear the risk of accidental perishing. The customer shall not be entitled to pledge or assign as a security items to third parties that are not fully paid. Where items are pledged, we need to be informed within three days. We are entitled to enter the rooms where our items are located. We are entitled to assert our rights under the retention of title – including, but not limited to taking back the goods delivered subject to retention of title – without asserting a prior revocation of the relevant purchase contract.
6. Force Majeure
Where events and circumstances whose occurrence is beyond our control, such as natural events, epidemics, pestilences, industrial conflicts, unpredictable lack of personnel, unpredictable lack of energy or raw materials or adjuvants, disruptions in traffic and operations, damages due to fire and explosions, strikes, lockouts, war, political unrest, terrorist acts, official orders and any and all other cases of force majeure, reduce the availability of the goods, so that we cannot perform our obligations under the contract (by proportionally considering other in-house or external obligations to deliver), we shall be released from our obligations under the contract and not obliged to procure the goods from third parties for the duration of the disruption and the extent of its effects. The provision above shall also apply where the events and circumstances render the execution of the relevant transaction sustainably uneconomic for us or occur with our sub-suppliers. Where these events last more than three months, we shall be entitled to rescind the contract. Where there are hindrances for a temporary period of time, the delivery periods or periods for deliverables shall be extended by the duration of the hindrance plus an appropriate starting time.
7. Rescission of Placed Orders or Contracts
We may request advance payment of the full purchase price or rescind the contract, provided that we become aware of circumstances that make a credit appear questionable.
Where the customer files an application to open insolvency proceedings, provides information on one’s financial status in lieu of an oath (Abgabe der eidesstattlichen Versicherung) or we become aware of a deterioration of the customer’s financial situation, then we are entitled to discontinue the deliveries immediately. We shall not be obliged to accept the customer’s rescission of the contract. Where we agree with the rescission, we may demand damages.
8. Terms and Conditions of Payment
The price list valid on the date of the order shall apply. Without our explicit approval, our staff members are not entitled to debt collection. As a rule, payment of invoices shall be due within 10 days of the invoice date with a discount of 3% or after 30 days after the invoice date without a discount. After expiry of the payment term we are entitled to charge the dunning costs and the default interests provided by law.
For partial delivery, the corresponding purchase price shall fall due accordingly. Bills of exchange and cheques shall only be deemed as payment after their drawing and expiry of the waiting period. Bills of exchange may only be given with our approval. Where payment by instalments is agreed and the customer is in default for an instalment for more than 10 days, the full amount shall fall due. Withholding a payment or set-off against any counterclaims by the customer shall be excluded. We shall not be obliged to render any further deliverable before full settlement of the customer account. Where the customer is in default with any obligations for payment, then any and all outstanding receivables shall fall due immediately.
The customer undertakes to treat any and all technical and commercial information relating to the goods and other information, including technical and commercial business secrets that are either designated confidential or have to be regarded as confidential due to the circumstances under which they have been made available or have become known to the customer (hereinafter jointly “Know-how”), and to not disclose or make such Know-how accessible to third parties, including, but not limited to, our competitors.
This obligation to secrecy shall not apply to information that
• was, at the time they have been made available by us, already known to the customer without any breach of the obligations of secrecy as can be proven through documents or other evidence, or
• was publicly accessible without the customer’s interference, or
• was made available to the customer without being bound to secrecy by a third party who had neither directly nor indirectly received such information from us.
We reserve any and all rights in the Know-how.
This obligation to secrecy shall remain in force even after the obligations under the contract by and between the customer and us have been performed.
The customer undertakes to protect us and our business activities and agrees that paying damages would only inadequately compensate for an infringement of the obligations of secrecy under this clause. Further, the customers accepts and affirms that a committed or imminent infringement of this obligation of secrecy would cause irreparable harm to us and therefore we are, in addition to any statutory and other claims, entitled to obtain a preliminary injunction (einstweilige Verfügung) against the committed, imminent or continued infringement of this obligation of secrecy, if we can demonstrate that such infringement may cause harm, without us being obliged to prove actual damages.
10. Information on Data Protection
11. Final Provisions
In the event that one of the foregoing provisions proves to be invalid in whole or in part, then this shall not affect the effectiveness of the remaining provisions.
Place of performance and place of jurisdiction shall be our registered office or – upon our discretion – Frankfurt am Main, Germany.
The relations between the customer and us shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the UN Convention on the International Sale of Goods (CISG). Clauses customary to the trade shall be construed according to the Incoterms 2020.
Date December 2020