Conditions of Sale and Delivery of
Rosa Heinz GmbH
Straßfeld 6
D - 85777 Fahrenzhausen
(Status: April 2005)
GENERAL
The following conditions apply to all our deliveries and services and to all our offers and contracts in respect of the deliveries and services to be rendered by us. These conditions also apply to all our future declarations, offers and contracts even if they have not been expressly agreed again. The Buyer's conditions to the contrary that we have not expressly acknowledged in writing shall be completely non-binding for us and shall not be deemed an element of the contract even if we do not expressly reject them.
I OFFER, ENTERING INTO CONTRACTS
Our offers are non-binding and subject to change without notice at all times in respect of details of quality, price, quantity, delivery periods and availabilities. Documents made available by us such as drawings, drafts and other patterns and originals are surrendered on a loan basis and remain our property. Orders placed by the contracting party are binding. Verbal agreements or agreements by telephone and telegram shall only be valid if we subsequently confirm these in writing. These shall only become binding once we have confirmed them in writing.
II SUBJECT MATTER OF CONTRACT, POURABLE GOODS COMPATIBILITY, DELIVERY, PERFORMANCE
We undertake to render the agreed services in accordance with the contractual agreements, the latest developments in science and technology available at the time the contract is entered into and the principle of efficiency. We reserve the right to make insignificant modifications in respect of manufacturing or technical progress and variations that are customary in the trade in quantity, weight, measurements, material composition, material structure, structure, surface and colour compared with the sample, offer in brochures, price lists or the contract insofar as these are in the nature of the used materials, do not affect the intended use or the usability and are acceptable to the Buyer. We shall not be liable for the compatibility of our goods with the Buyer's pourable products in respect of chemical resistance, statutory requirements and physical qualities. We are permitted to assign to suitable and qualified subcontractors services in accordance with this contract in full or in part. The Customer undertakes to carry out pourable product compatibility trials and store sample packaging once at a high temperature and once at a low temperature to test whether our packaging materials are suitable for the planned pourable products and are compatible with such products. The Supplier does not guarantee the suitability of the goods for a certain intended use. Stated dates and periods are non-binding insofar as nothing to the contrary was expressly agreed upon. Our delivery period shall commence upon forwarding confirmation of order to the Buyer. However, as a general rule the start of the delivery period stated by us presupposes that all technical issues and details in respect of design have been clarified by way of the Buyer honouring its duty to collaborate. The delivery period shall be deemed met if the Supplier has dispatched the goods on the last day of the agreed period. Partial deliveries and partial services are permitted. All delivery and performance dates are subject to the provision of own deliveries in good time. If the failure to meet the agreed delivery period is based on force majeure such as war, natural disasters etc. or events such as strikes etc., the delivery period shall be extended accordingly. The Buyer undertakes to accept the goods as long as they are available for hand-over. We shall, where possible, abide by the quantities stated in the confirmation of order. Appropriate partial deliveries and variations from the orders, in particular in the case of special productions and pallet-packed goods, up to +/- 10% are permitted. The minimum order value is € 25.00. In the case of call-up orders (contracts) we undertake to manufacture the ordered quantity as a whole or in necessary parts and to store these on behalf of the Buyer during the term of contract. The ordered quantity must have been delivered up until the agreed final acceptance date. The final acceptance date is stated in the confirmation of order. Ongoing acceptance in part shipments during the term of contract is deemed agreed upon. If it becomes clear after half the contractual term has lapsed that the contract shall not be honoured up until the final acceptance date, we shall be entitled to write out invoices for advance charges without delivery.
III PASSING OF RISK, SHIPPING, DUTY TO PROVIDE NOTIFICATION OF DEFECTS
In the absence of details to the contrary in the confirmation of order, deliveries “ex works” are agreed upon (EXW – D-85777 Fahrenzhausen). In this respect we are entitled to determine the type of shipping. We shall not take back transport or any other packaging, with the exception of pallets. The Buyer undertakes to ensure that such packaging is disposed of at its own cost. Risk shall pass to the contracting party as soon as our goods leave the forwarding station. This also applies if the contracting party is not required to carry the shipping costs. This provision shall not apply if the contracting party is a consumer. If dispatching the goods is delayed due to circumstances for which we are not responsible, or if we exercise a right of retention, risk shall pass upon notification of the readiness for dispatch.
IV DEFECTS, WARRANTY, STATUTE OF LIMITATIONS
The Buyer is to inspect the goods without delay following receipt in respect of possible defects even if the delivery is not addressed to the Buyer but to a third party stated by the Buyer. Tolerances that are customary in the trade or are insignificant in respect of measurements and weight etc. do not constitute defects. If defects are identified during use, e.g. filling, use is to be discontinued immediately. Notification of defects, shortfalls and wrong deliveries is to be provided and other complaints are to be lodged in advance by telephone or facsimile immediately once knowledge of these is gained. The Supplier is to be given the opportunity to identify on site the defects for which complaints have been lodged. We are to be provided with notification of obvious defects and variations at the latest 72 hours following receipt of the goods. Further-reaching claims, in particular any kind of claims for damages, cannot be lodged against us. These include, above all, damage caused by the loss of pourable products or leaked pourable products. Furthermore, this includes damage caused because the pourable products have been rendered useless. This exemption from liability shall not apply if the damage is caused by an intentional or gross negligent violation of an obligation on our part or by our vicarious agents, or if the damage is based on a threat to life and limb.
Damage caused by improper treatment by the Buyer is excluded from the warranty. In particular, we shall not be liable either for changes in the condition of our products as a result of improper storage or unsuitable operating resources as well as climactic and other effects that are not presupposed in accordance with the contract. Furthermore, the warranty does not apply to defects that are based on the selection of unsuitable material.