GENERAL TERMS AND CONDITIONS
Flores Distribution Europe GmbH
1 General – Scope – Written form – Assignment
1.1 These General Terms and Conditions (“GTC”) apply to all our business relations with our customers (“Customer”) and are an integral part of all our contract offers and contract conclusions. Our GTC shall apply exclusively; they shall also apply to all future transactions with the Buyer. We do not recognise any terms and conditions of the Purchaser that conflict with or deviate from our GTC unless we have expressly agreed to their validity in writing. 1.2.
1.2 These General Terms and Conditions shall only apply if the customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.
1.3 Our GTC apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”). Unless expressly agreed otherwise, the GTC in the version valid at the time of the order placed by the customer or, in any case, in the version last notified to the customer in text form, shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
1.4 Individual agreements made with the customer in individual cases (including subsidiary agreements, supplements and amendments) shall take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation.
1.5 The assignment of claims against us to third parties is excluded. § 354 a HGB (German Commercial Code) remains unaffected.
2. information – advice – changes to the goods
2.1 Information and advice in connection with our deliveries and services shall be given on the basis of manufacturer’s specifications (in particular in the case of purely commercial goods). Insofar as we provide such information or act in an advisory capacity and such information or advice is not part of the contractually agreed scope of services expressly owed by us, this shall be done free of charge and to the exclusion of any liability.
2.2 Subject to an express agreement, we also do not assume any obligation to precisely comply with such general values, performance specifications and application possibilities. Our declarations in this respect as well as our representations of the same are in particular no guaranteed characteristics of quality.
2.3 Deviations that are customary in the trade and deviations that occur due to legal regulations are permissible insofar as they do not impair the usability for the purpose that may be agreed separately in the contract.
3. Offers – conclusion of contract – IATF-relevant information
3.1 Our offers are subject to change without notice and are non-binding unless they are expressly marked as binding or contain a specific acceptance period.
3.2 In response to orders, quotations or contracts of the customer, a contract shall only be concluded upon our written confirmation of the order (text form is sufficient) or upon our execution of the delivery. If orders, offers or contracts of the customer are not confirmed or executed within fourteen days of receipt by us, they shall be deemed to have been rejected. If our order confirmation deviates from the order, the offer or the order of the customer, the order confirmation shall be decisive unless the customer objects to the order confirmation within seven working days of its receipt. 3.3.
3.3 The legal relationship between us and the customer shall be governed solely by the purchase contract concluded at least in text form, including these General Terms and Conditions. Our verbal statements and promises prior to the conclusion of the contract (in particular technical descriptions and other information in offers, brochures on the Internet and other information) are legally non-binding and verbal agreements of the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to apply in a binding manner.
4. Calculation of the purchase price
4.1 Unless expressly stated otherwise, the prices quoted by us are in EURO and do not include the statutory value-added tax; the value-added tax will be shown separately in the invoice at the statutory rate on the day of invoicing.
4.2 The purchase price shall be calculated according to the quantities, weights or dimensions determined by us at the place of dispatch.
4.3 If, between the conclusion of the contract and delivery, public charges relating to the import or distribution of the goods are increased or newly introduced, we shall be entitled to withdraw from this contract.
5. Payment – Interest on arrears – Prohibition of set-off
5.1 Unless otherwise stated or agreed on the invoice, the purchase price is payable “net cash” and due upon delivery. Purchase price payments shall be made in cash or by bank transfer. They shall be deemed to have been made from the date on which the amount is freely available to us. The risk of the payment method shall be borne by the customer. Other forms of payment require special agreement, at least in text form; any costs incurred by either party as a result shall be borne by the customer. 5.2.
5.2 If the customer is in default of payment, we shall be entitled to claim default interest in the amount of 9 percentage points above the base interest rate. We reserve the right to claim further damages as well as the lump sum for damages according to § 288 para. 5 BGB (German Civil Code).
5.3 In the event of justified doubts about the solvency or creditworthiness of the customer, in particular in the event of payment arrears, we shall be entitled to revoke any payment terms granted and to demand advance payment or securities for further deliveries.
5.4 Offsetting with counterclaims other than recognised, undisputed or legally established counterclaims and the exercise of rights to refuse performance and rights of retention are excluded.
6.1 Unless otherwise stated in the order confirmation, delivery is agreed on terms in accordance with the Incoterm “EXW” (Incoterm code 2020).
6.2 If we ourselves do not receive delivery although we have placed congruent orders with reliable suppliers, we shall be released from our obligation to perform and may withdraw from the contract. In this case, we shall inform the customer immediately of the non-availability or untimely availability of the delivery item or the supply. The burden of proof that we are responsible for a breach of duty in connection with the procurement of the delivery item lies with the customer.
6.3 We are entitled to make partial deliveries if the partial delivery is usable for the customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the customer does not incur any significant additional expenses or costs as a result (unless we agree to bear these costs).
6.4 Short deliveries or excess deliveries of up to 10% of the contractually agreed quantity are permissible – the quantity actually delivered will be invoiced.
6.5 Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
6.6 If the agreed deadline cannot be met due to circumstances beyond our control or those of our suppliers, it shall be extended accordingly. We shall inform the customer immediately of such a case. If the impeding circumstances still persist one month after expiry of the agreed delivery period, either party may withdraw from the contract. Further claims due to exceeding of the delivery period for which we are not responsible are excluded.
6.7 We may – without prejudice to our rights arising from default on the part of the customer – demand from the customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period of time during which the customer fails to meet its contractual obligations towards us.
6.8 In the absence of specific agreements in this respect, the method of dispatch, dispatch route and packaging are subject to our dutiful discretion.
6.9 Unless otherwise agreed, our goods are intended for processing in the purchaser’s own business.
7. hindrances to delivery
7.1 Wars, strikes, lock-outs, shortages of raw materials or energy, operational or traffic disruptions, acts of government and all other cases of force majeure which prevent, delay or render uneconomical the manufacture or dispatch of the goods shall release us from our obligation to deliver for the duration and to the extent of the disruption. If the disruption exceeds a period of three months, we shall be entitled to withdraw from the contract. 7.2.
7.2 In the event of partial or complete loss of our sources of supply due to force majeure as defined above, we shall not be obliged to obtain supplies from other suppliers. In this case, we are entitled to distribute the available quantity of goods, taking into account our delivery obligations as well as our own requirements.
8. quality of the goods – samples – technical advice – uses
8.1 The quality of the goods shall be determined exclusively by the manufacturer’s product specification.
8.2 The samples provided by us as well as our technical and chemical specifications serve only as a general description of the goods. They do not contain any guarantee of quality or durability and do not release the purchaser from the obligation to examine each individual delivery.
8.3 Guarantees shall only be assumed by us within the framework of individual, express and written agreements.
8.4 The technical advice which we provide to the best of our knowledge is non-binding and does not release the customer from the obligation to check the suitability of each individual delivery for the intended use before processing. The customer is solely responsible for the application, use and processing of the goods supplied by us and for compliance with the applicable safety regulations.
8.5 Unless we have expressly agreed otherwise in writing in advance after examining our risks in each individual case and subject to the purchaser’s compliance with all applicable regulations, the following prohibitions of use shall apply: The goods sold and/or delivered by us are not intended (i) for the manufacture of medical devices, in vitro diagnostics or use in the pharmaceutical field, (ii) for the manufacture of weapons or other objects designed to kill or injure human beings, (iii) for the construction of aircraft or spacecraft or for installation in aircraft or spacecraft, and (iv) for safety-critical applications in which the possible failure of the goods delivered by us endangers the life or health of human beings.
9 Notification of defects – Claims for defects
9.1 Our deliveries shall be inspected carefully immediately after delivery to the customer or to the third party designated by him – but in particular before any immediate mixing, blending or processing. With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the customer if we do not receive a written (text form sufficient) notification of defects within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if we do not receive the notice of defect within seven working days after the time at which the defect became apparent; however, if the defect was already apparent to the customer at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect. This shall also apply if the Purchaser is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) and the order is placed in the exercise of a commercial or self-employed professional activity.
9.2 In the case of partial deliveries, clause 9.1 shall apply to each individual partial quantity.
9.3 The written (text form is sufficient) complaint of the customer must precisely describe the type and extent of the defect.
9.4 A notice of defect shall not entitle the customer to withhold payments due or to refuse acceptance of further deliveries.
9.5 In the event of timely and justified notices of defects, the purchaser’s claims for defects shall initially be limited to the right to subsequent performance.
9.6 Within the scope of subsequent performance, we shall be entitled to choose between new delivery and rectification. The costs of subsequent performance, in particular transport, travel, labour and material costs, shall be borne by us within the framework of the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the customer. Our right to refuse subsequent performance under the statutory conditions remains unaffected. 9.7.
9.7 If we fail to remedy the defect, the customer may reduce the purchase price or, at its option, withdraw from the contract. Claims for damages according to clause 10. remain unaffected by this.
9.8 In the event of a possible recourse against a businessman (§ 445a BGB), it shall be presumed that there were no defects at the time of the transfer of risk to the customer if the customer has dutifully inspected or should have inspected in accordance with clauses 9.1 to 9.3 but has not reported any defects, unless this presumption is incompatible with the nature of the item or the defect.
9.9 If the Purchaser asserts recourse claims, it must allow itself to be treated towards us as if it had implemented all legally permissible contractual options towards its contractual partner (e.g. refusal of subsequent performance due to disproportionality or limitation of the reimbursement of expenses to a reasonable amount).
9.10. The warranty period is one year after delivery of the item, unless mandatory statutory provisions provide for a longer limitation period.
9.11. We do not guarantee that the product is free of patents or other industrial property rights of third parties.
9.12. In the case of goods which have been sold as agreed as off-grade goods, secondary goods, regenerated goods or similar, the customer shall not be entitled to any warranty rights on account of a material defect.
10.1 Our liability for damages, irrespective of the legal grounds, shall be limited in accordance with this Clause 10 insofar as fault is involved.
10.2 We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, unless a breach of material contractual obligations is involved. Material contractual obligations are in particular those obligations the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the customer regularly relies and may rely.
10.3 Insofar as we are liable for damages on the merits in accordance with section 10.2, this liability is limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.
10.4 In the event of liability for simple negligence, our liability to pay compensation for property damage and financial loss shall be limited to an amount of EUR 5 million per case of damage, even if this involves a breach of material contractual obligations.
10.5 The above exclusions and limitations of liability shall apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.
10.6 Insofar as we provide technical application advice and the corresponding information or advice is not part of the expressly contractually agreed scope of services owed by us, this shall be provided free of charge and to the exclusion of any liability.
10.7 The limitations of this clause 10 do not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
11 Confidentiality / Data Protection
11.1 Unless expressly agreed otherwise in writing, information submitted to us in connection with an order shall not be deemed confidential unless such confidentiality is obvious.
11.2 We point out that we store data (including personal data) from the contractual relationship for the purpose of data processing and reserve the right to transmit the data to third parties (e.g. insurance companies) as far as necessary for the fulfilment of the contract. Under no circumstances will we use, sell or otherwise transfer such data to third parties outside our company.
11.3 In all other respects, we draw attention to the following with regard to data protection:
Contact details: The person responsible under data protection law is us, Flores Distribution Europe GmbH (see below for address and contact details). Our data protection officer can be reached at the above contact details and at the e-mail address firstname.lastname@example.org.
Purpose of processing and legal basis: The supply may contractually require the customer to provide us with personal data (hereinafter “data”). We process this data for the purpose of concluding and fulfilling the contract (including legal prosecution and debt collection) on the basis of the provisions of data protection law (in particular Art. 6 para. 1 b) DS-GVO). We also process the data on the basis of the provisions of data protection law to protect our legitimate interests (in particular Art. 6 (1) f) DS-GVO). The legitimate interest here lies – in accordance with the following regulations – in the avoidance of a loss of receivables from third parties or us as well as in the transmission of performance information to the ordering party.
Categories of data: We process the following categories of data: master data (such as company, contact person, address, if applicable), communication data, contract data, receivables data, payment and default information, if applicable.
Third party recipients: Data may be transmitted to credit agencies in compliance with the relevant regulations for the purpose of avoiding bad debt losses with third parties or us, e.g. for the collection of probability values for a bad debt loss or for the transmission of undisputed or legally established claims with which the customer is in default. The credit agencies also store the data transmitted to them in order to be able to provide them to the contractual partners affiliated with them within the framework of the assessment of the risk of default on receivables. However, such provision of data shall only take place if the contractual partners affiliated with the credit agency can demonstrate a legitimate interest in the transmission of the data. The credit agency may communicate address data for the purpose of determining the debtor. The customer may receive information from the credit agency on data stored about him. In the case of debt collection, data may be transmitted to the following categories of recipients if this is necessary for the collection of the debt: assignees, credit agencies, debt collection companies, third-party debtors, residents’ registration offices, courts, bailiffs, lawyers.
Product information: We use data on the basis of the provisions of data protection law (in particular Art. 6 para. 1 f) DS-GVO) in order to send the customer information about our other services, if necessary, by post or – in compliance with § 7 para. 3 UWG – by electronic means.
Data storage period: We delete the data immediately if we are obliged to do so, if we no longer need the data for the purposes for which it was collected and there are no storage obligations to the contrary. Irrespective of this, a review is carried out every three years to determine whether it is possible to delete the data.
Rights of objection: The customer may object to data processing for the purpose stated under “Product information” at any time. Irrespective of this, the data subject has a right of objection in accordance with Art. 13 para. 2 b) or Art. 14 para. 2 c) in conjunction with. Art. 21 DS-GVO against the processing according to Art. 6 para. 1 f) DS-GVO.
Other rights of the data subject: The data subject is entitled to the following rights in accordance with the statutory provisions (in particular the GDPR and the Federal Data Protection Act): the right to information, correction, deletion, restriction of processing and data portability. In addition, the data subject may complain to the supervisory authority about the processing of data concerning him or her.
12. Retention of title
12.1 The ownership of the delivered goods shall remain reserved until all our claims against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if claims have been included in a current account and the balance has been struck and accepted. The goods as well as the goods covered by the retention of title which take their place in accordance with the following provisions are hereinafter referred to as “goods subject to retention of title”.
12.2 The customer is entitled to resell and/or process the reserved goods in the ordinary course of business. He shall carry out any processing on our behalf without any obligation on our part arising therefrom. In the event of processing, combination or mixing of the reserved goods with other goods, a co-ownership share in the new item shall generally arise for us, namely in the event of processing in the ratio of the value (= gross invoice value, including ancillary costs and taxes) of the reserved goods to the value of the new item, in the event of combination or mixing in the ratio of the value of the reserved goods to the value of the other goods. In the event that we do not acquire such ownership, the customer hereby assigns to us by way of security its future ownership or – in the aforementioned proportion – co-ownership of the new item.
12.3 The customer hereby assigns to us by way of security all claims accruing to him from the resale of the reserved goods against a purchaser or against third parties – in the case of our co-ownership of the reserved goods, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The assignments are hereby accepted by us. The customer remains revocably authorised to collect these claims even after the assignment. Our right to collect the claims ourselves shall remain unaffected; however, we shall not make use of this right as long as the customer duly fulfils his payment and other obligations. Upon request, the customer shall inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors of the assignment. We are also authorised to notify the assignment to the debtors of the customer ourselves.
12.4 In the event of a breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to withdraw from the contract and the customer shall be obliged to surrender the goods subject to retention of title to us (“realisation event”). In the event of realisation, the customer hereby irrevocably permits us to enter his business and storage premises without hindrance and to take the reserved goods with us. In addition, the customer shall provide us, upon first request, with all necessary information and documents regarding the inventory of the goods subject to retention of title and the assigned claims, and shall immediately notify its customers of the assignment of the claim.
12.5 Insofar as and as long as the reservation of title exists, the customer may neither assign by way of security nor pledge goods subject to reservation of title or items manufactured from them without our consent. Conclusions of financing contracts which include the transfer of our rights of retention require our prior written consent, unless the contract obliges the financing institution to pay the purchase price share to which we are entitled directly to us.
12.6 The customer is obliged to store the goods subject to retention of title at his own expense with the care of a prudent businessman and to insure them against the usual storage risks.
12.7 We undertake to release the securities to which we are entitled in accordance with this clause 12 at the request of the customer and at his discretion insofar as the realisable value of the securities exceeds the claims to be secured by more than 20 % or their nominal amount by more than 50 %.
12.8 If the retention of title is not effective under the law of the country in which the delivered goods are located, the customer shall provide equivalent security at our request. If he does not comply with this request, we may demand immediate payment of all outstanding invoices, irrespective of any agreed payment terms.
13. Final clauses
13.1 The place of performance for all obligations arising from the contractual relationship is our registered office.
13.2 If the customer is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between us and the customer shall be, at our discretion, our registered office or the registered office of the customer. In these cases, however, our registered office shall be the exclusive place of jurisdiction for actions against us. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
13.3 The law of the Federal Republic of Germany shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the reference provisions of German international private law.
13.4 The invalidity of individual provisions of our GCSD shall not affect the validity of the remaining provisions. Insofar as the contract or these GCSD contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GCSD if they had been aware of the loophole.
Düsseldorf, Nov. 2021
FLORES DISTRIBUTION EUROPE GMBH
Headquarter address: Willstätterstr.6 , 40549 Düsseldorf
Phone.: (+49) 0211 171 171 25/ 27
Fax: (+49) 0211 497 676 53