- Scope of application, basis of the contract
- These Sales and Service Conditions apply with regard to entrepreneurs. With regard to consumers, these General Supply and Service Conditions shall apply subject to the following limitations and only insofar as they are not in conflict with mandatory regulations of §§ 305 ff. BGB (German Civil Code).
- Purchasing conditions of the customer which deviate from those of SCHWEPPER shall not apply. They shall only oblige SCHWEPPER where they have been explicitly confirmed by SCHWEPPER in writing, even though reference is made to them in the order. Insofar as the application of a customer’s purchasing conditions has been agreed in individual cases, SCHWEPPERs conditions shall also apply where they concern matters not regulated therein.
- Supplies and services shall be effected on the basis of SCHWEPPERs offer and SCHWEPPERs written order confirmation referring to this offer or confirming the customer’s order.
- To be valid, all agreements made on contract conclusion and during the course of its term must be confirmed in writing by SCHWEPPER.
- Unless expressly declared otherwise, all offers made by SCHWEPPER shall be non-binding.
- SCHWEPPER is entitled to make use of third party support as vicarious agents at any time in order to fulfill its obligations.
- Dimensions and properties; samples and prototypes
- Unless expressly labelled otherwise, all supply and/or performance specifications, (descriptions of state and quality as well as information on dimension and weight) and, for instance, associated samples and prototypes relating to an offer from SCHWEPPER are only approximations and are only definitive within the tolerances usual in the industry.
- Our specifications concerning the dimensions, characteristics and intended uses of our products only serve as descriptions and do not constitute any agreements on quality, guaranteed properties or other guarantees.
III. Prices and payment terms
- The agreed prices shall apply with the addition of the respective applicable VAT ex SCHWEPPERs delivery warehouse plus packaging, but excluding cartage and storage costs, transport insurance and other transportation costs, unless expressly agreed otherwise. Our goods are only insured against the dangers of transportation upon special agreement and only at the cost of the customer. Payment and bank transfer costs will be borne exclusively by the customer.
- In case of call-off orders and any other orders whose processing takes longer than six months, SCHWEPPER reserves the right to apply a proportional surcharge to the agreed prices corresponding to the changed cost factors.
- SCHWEPPER shall only accept bills of exchange and cheques upon special agreement and only free of charges as payments to account, subject to their discountability, with value date on the day on which SCHWEPPER can freely dispose of their equivalent value.
- SCHWEPPERs invoices are due for payment immediately as soon as the customer has been notified of the goods’ readiness for shipment.
- In the event of default of payment by the customer and subject to additional claims for damage, SCHWEPPER shall charge interest equivalent to the rate of its own current accounts payable to banks, however at least amounting to 9 percentage points above the European Central Bank’s base interest rate. The interest rate for late payment charged to consumers shall be 5 percentage points above the European Central Bank’s base interest rate. The customer remains free to provide evidence that SCHWEPPER has suffered no damage or considerably less damage caused by delay. Insofar as a customer is entirely or partially in arrears with his payment for a delivery, all of SCHWEPPERs claims against the customer shall fall due immediately and further goods deliveries shall only be effected for cash in advance.
- With respect to SCHWEPPERs claims for payment, customer rights of retention or refusal to perform that are not based on deliberate or grossly negligent contract violations by SCHWEPPER or its assistants or vicarious agents are excluded, if and to the extent that the counter claims on which the enforcement of these rights is based are not undisputed or have not been established in law. Such exclusion shall not apply as long as SCHWEPPER has not compensated in advance for defective partial deliveries or services already paid by the customer by providing relevant replacement deliveries or services with respect to further payment obligations of the customer.
- The customer is only entitled to offset SCHWEPPERs payment claims with counterclaims recognized by SCHWEPPER or established in law.
- If SCHWEPPER receives information after contract conclusion that the customer may not receive a loan equivalent to the order volume, SCHWEPPER is entitled to retain the goods and demand advance payment or security payment at its own discretion. The right to raise claims for damage due to non-fulfillment remains reserved.
- If reliable knowledge is gained of circumstances which exclude the customer’s unreserved creditworthiness, all of the customer’s unpaid debts at the time of gaining such knowledge shall fall due for payment immediately. In such a case, all payment deferral agreements or the like shall become invalid.
- Transfer of risk
- For deliveries, the risk is transferred to the customer upon handing over of the goods to the carrier. This shall also apply in case of exceptional free of charge delivery by SCHWEPPER. If the customer collects the goods from SCHWEPPER, the risk is transferred to him upon his receipt of the notice of readiness for shipment.
- SCHWEPPER shall choose the carrier, the method of shipment and the transportation route with its usual care unless the customer gives the relevant specifications in good time before the expiry of the delivery period. We shall choose the method of shipment at our own discretion, without obligation to choose the quickest or cheapest shipment method or route.
- Delivery periods, call-off orders and delay
- Expressly agreed delivery and performance periods begin upon the customer’s receipt of SCHWEPPERs confirmation of order, however not before receipt of all documents possibly to be provided by the customer, especially delivery and/or performance specifications and not before receipt of a possibly agreed down payment. Unless delivery and performance periods have been agreed, information concerning the delivery period is only approximate.
- Partial deliveries and/or services are permitted and shall be invoiced separately in accordance with the scope of delivery.
- Delays in deadlines that are due to circumstances beyond SCHWEPPERs control shall trigger an appropriate extension of the delivery and performance periods. This shall also apply if and to the extent that such delays occur in addition to a delay already caused by SCHWEPPER. SCHWEPPER will notify the customer of such circumstances without delay.
- The customer must set SCHWEPPER an appropriate grace period in case of delivery and performance delays for which SCHWEPPER is responsible. Where SCHWEPPER has still not notified readiness for delivery or willingness to perform after the expiry of this additional period, the customer is entitled to rescind from the contract as regards the unfulfilled part of the delivery or service or, in case SCHWEPPERs legal representatives or vicarious agents are culpable of deliberate intent or gross negligence with regard to the delay, demand compensation for damage instead of performance with regard to this part of the contract. In case of partial delay, where the customer provides evidence that a partial fulfillment is not of interest to him, he shall be entitled to the above rights with regard to the whole contract.
- Delays in delivery and performance for which the customer is responsible shall not affect the agreed payment obligations and dates. Where the customer is in delay with his acceptance or where he culpably violates other obligations to co-operate, SCHWEPPER is entitled to demand compensation for the damages it incurs as a result, including possible additional expenses. Where the customer irrevocably refuses to accept the goods for reasons beyond SCHWEPPERs responsibility, our claim for damages shall amount to at least 15% of the net contract price, without SCHWEPPER being obliged to provide evidence of such damage. The customer remains entitled to prove that SCHWEPPER has incurred no damage or a lesser damage.
- Where the acceptance period for call-off orders has not been sufficiently specified, it shall end upon the expiry of the current calendar year. If the customer does not call-off the goods within the agreed period, SCHWEPPER can, at its own discretion, deliver shipments already prepared without giving further notice or store them at the cost of the customer. In addition, SCHWEPPER is entitled to give the customer a grace period for acceptance and, in case of a fruitless expiry of such grace period, to rescind wholly or partially from the contract and/or demand compensation for damage.
- Reservation of title to goods and tools
- SCHWEPPER reserves its title to deliveries, including partial deliveries, until an overall delivery has been paid in full.
- Working and processing of the reserved goods by the customer, to which the latter is entitled within the scope of his proper business operations, is carried out without SCHWEPPER incurring any resulting obligations. SCHWEPPER also retains its title to these goods in accordance with paragraph 1. Where the reserved goods are bonded, mixed or combined with other goods or where they are worked or processed SCHWEPPER acquires co-ownership of the new goods in the same proportion as the invoice value of the reserved goods has to the value of the new goods. The customer shall retain the new goods in his custody for SCHWEPPER with the care to be expected of a diligent businessman. The customer must store the reserved goods himself at his own cost, separately from other goods with due care and fully insured against fire, water, explosions and other kinds of damage. SCHWEPPER must be notified immediately of any damage that occurs. The customer shall, here and now already, assign his possible claims against the insurer to SCHWEPPER.
- Subject to a retraction for reasons for which the customer is responsible, the latter is entitled to sell the goods in SCHWEPPERs ownership or co-ownership for financial gain within the scope of his normal business activities. For such a case, the customer shall, here and now, assign his purchase price claims with respect to the purchaser, together with all security and secondary rights, to SCHWEPPER until all of the latter’s receivables from existing business relationships in the amount of their respective arrears have been paid in full. However, in case a sale of goods in SCHWEPPERs co-ownership, this condition shall only apply to that proportion of the purchase price claim which is equivalent to the invoice value of the reserved goods. An agreement on a prohibition of assignment regarding the purchase price claim with respect to the purchaser is impermissible.
- An assignment in accordance with paragraph 3 is made, by way of security, with the proviso that the customer shall remain entitled to collect the purchase price claim from the purchaser insofar and as long as he fulfils his payment obligations towards SCHWEPPER in a proper manner and there is no deterioration of his financial circumstances, about which he would have to notify to SCHWEPPER without delay. At SCHWEPPERs request, the customer shall provide it with all documents and information required to assert the purchase price claim. Upon the occurrence of the circumstances stated in sentence 1, SCHWEPPER is entitled to notify the purchaser of the assignment.
- At the request of the customer, SCHWEPPER undertakes to release the securities to which it is entitled to such extent as the realizable value of these securities exceeds the claims to be secured by more than 10%. SCHWEPPER is responsible for selecting the securities to be released.
- The customer is not entitled to pledge or assign as security such goods as are owned or co-owned by SCHWEPPER. In case of attachments or seizures by third parties, the customer shall disclose the respective ownership status to them and notify SCHWEPPER immediately in order to protect its rights, while handing over all documents essential for an intervention.
- Tools, devices and moulds etc. that SCHWEPPER manufactures or has manufactured in order to fulfill its obligations or on behalf of the customer remain in the ownership of SCHWEPPER, even if the customer bears a proportion of their manufacturing costs.
VII. Customer’s rights in the case of defects
- As a result of deliveries or services that are defective in nature, either in whole or in part, and excluding any further-reaching claims, the Customer shall be entitled to demand subsequent performance in the scope equivalent to said defective nature, either in the form of subsequent improvement or – at SCHWEPPER’s discretion – of substitute delivery or performance, with substitute delivery, however, only taking place in exchange for the defective delivered item being returned; this shall not affect the Customer’s right to demand a reduction in price or to withdraw from the contract in the event that such subsequent performance fails once and for all.
- An appropriate period shall be granted to SCHWEPPER for the purpose of carrying out said subsequent improvement or substitute delivery/performance; failing this, the latter shall be released from its obligations to provide subsequent performance.
- The Customer’s claims for defects – with the exception of claims for damages due to defects, to which sub-section VIII below applies – shall become statute-barred within one year of the risk being passed on to the Customer. Limitation periods vis-à-vis consumers shall be based on statutory provisions.
- When delivering third-party goods, SCHWEPPER shall also be entitled, at its discretion, to assign any relevant claims for defects or any further-reaching claims for defects it has vis-à-vis the manufacturer or earlier supplier to the Customer instead of providing its own substitute delivery pursuant to sub-section 1, 1st clause; SCHWEPPER shall support the Customer in asserting said claims. The provision set out under sub-section 1, 2nd clause shall apply mutatis mutandis to SCHWEPPER.
- This shall not affect the Customer’s statutory inspection obligation and obligation to object to defects pursuant to Section 377 of the German Commercial Code (HGB).
- SCHWEPPER’s contractual and statutory liability, as well as the contractual and statutory liability of its vicarious agents, for all loss or damage, including loss or damage arising from culpability upon formation of the contract, the defective nature of the goods (including any consequential loss or damage resulting therefrom), delays, other breaches of duties or offences shall be excluded unless SCHWEPPER provided a guarantee for the characteristics of the contractual items to be delivered, fraudulently concealed a defect, or breached a so-called cardinal obligation; cardinal obligations are obligations to the very performance of which is deemed to be necessary for the due fulfilment of the contract and compliance with which the contractual partner regularly relies upon, and indeed is entitled to rely upon.
Furthermore, this exclusion of liability does not apply to:
- liability for loss or damage resulting from injury to life, limb or health due to a negligent or willful breach of duty on the part of SCHWEPPER or one of the latter’s statutory representatives or vicarious agents, or
- liability for other loss or damage resulting from a negligent or willful breach of duty on the part of SCHWEPPER or one of the latter’s statutory representatives or vicarious agents, or
- absolute liability resulting from mandatory statutory provisions, regardless of culpability, for instance, provisions set out under the German Product Liability Act (Produkthaftungsgesetz).
- The provision above shall also apply insofar as the Customer demands reimbursement of expenses incurred in vain as opposed to asserting a claim for damages instead of performance.
- With the exception of liability for loss or damage caused with willful intent and/or absolute liability resulting from mandatory statutory provisions, regardless of culpability, for instance, provisions set out under the German Product Liability Act, liability on the part of SCHWEPPER shall, irrespective of the legal grounds, be limited to the kind of foreseeable damage that may typically be expected of transactions of this type; however, this shall only apply to ordinary negligence in the event that cardinal obligations (see above) are breached
- All of the Customer’s claims for damages vis-à-vis SCHWEPPER and the latter’s vicarious agents that are not excluded pursuant to the provisions above shall become statute-barred after 2 years; this shall also apply accordingly in the event that the Customer demands reimbursement of expenses incurred in vain as opposed to asserting a claim for damages instead of performance. In derogation of the above, claims for damages arising from a breach of an obligation to provide subsequent performance as a result of a defect shall become statute-barred within the period pursuant to sub-section VII outlined above. 3. The limitation period shall begin upon the risk being passed on in the case of contractual claims for damages resulting from a defect and upon SCHWEPPER becoming aware that the loss or damage occurred and of who the damaging party was in the case of all other remaining claims. In case of claims resulting from loss or damage caused with willful intent, however, as well as in scenarios involving absolute liability resulting from mandatory statutory provisions, regardless of culpability, for instance, provisions set out under the German Product Liability Act, the limitation period shall be based on statutory provisions
- This shall not affect the limitation period in the event of delivery recourse in accordance with Sections 478, 479 of the German Civil Code (BGB).
- Suspension of contractual obligations
- Events and circumstances whose occurrence or prevention lie outside the scope of the contracting partner’s influence (this shall include natural occurrences, decrees of higher authorities, strikes, lockouts and all impediments to performance for which the contracting partners are not responsible, especially transport, traffic and operational disruptions – including and in general such impediments to the customer’s own, his suppliers’ and subcontractor’s performance; as well as bottlenecks, shortages and other delays in raw material procurement and processing difficulties due to the characteristics of the materials to be provided by the customer) shall release the contracting partners from their contractual obligations for the duration and extent of the disturbance.
- Should events or circumstances of the kind described in Paragraph 1 lead to a substantial increase in SCHWEPPERs purchasing or procurement costs, the latter is also entitled to demand an appropriate price increase from the customer after providing evidence of such increase, even in cases of fixed price agreements. If the customer does not agree to such a price increase within an appropriate declaration period to be set by SCHWEPPER, the latter shall be entitled to rescind from the part of the contract that has not yet been fulfilled.
- If SCHWEPPER definitively cannot fulfill its delivery or performance obligations, due to events or circumstances described in paragraph 1, within a period to be set by the customer, the customer is entitled to rescind from the still unfulfilled part of the contract to the exclusion of additional claims. In otherwise equivalent circumstances, SCHWEPPER is also entitled to such a right to rescission where its efforts to restore its readiness to deliver or perform, to which it remains obliged, have remained unsuccessful for a period of six months after the occurrence of the obstruction.
- Premature termination of contract
- Should the contractual relationship be terminated for any reason before SCHWEPPER has completely fulfilled the contract, its deliveries and/or services provided up to that date shall be remunerated as follows:
- The full remuneration must be paid for deliveries and/or services which are charged at a flat rate, if and insofar as SCHWEPPER has fully provided its deliveries and/or services. Otherwise, the total remuneration must be reduced by such percentage – which shall be estimated if necessary – as corresponds to the unfulfilled part of the contract;
- Deliveries and/or services to which special remuneration amounts have each been allocated or whose remuneration is charged according to cost must be invoiced according to the status of completion achieved.
- Possible additional claims from SCHWEPPER due to the premature termination of contract remain unaffected.
- Changes in circumstances
Should the economic, technical or legal circumstances prevailing at the time of contract conclusion change so radically before the contract has been completely fulfilled by SCHWEPPER that a contracting partner cannot reasonably be expected to adhere to the current contract, – especially, for example, because performance and reciprocal performance are no longer in the agreed balance, – the contracting partner to whose disadvantage the change in circumstances has resulted can demand an appropriate adjustment of the contract.
XII. Place of fulfilment and court of jurisdiction
- The place of fulfilment for deliveries, services and payments is the headquarters of SCHWEPPER.
- The court of jurisdiction is the headquarters of SCHWEPPER insofar as the customer is an entrepreneur, a legal entity in public law or a special fund in public law.
XIII. Applicable law
German law shall apply to the exclusion of the UN Convention on the International Sale of Goods dated 11.04.1980.