1. Scope
International Sales Conditions
Phenion
1.1 These General Sales Conditions (hereinafter "Sales Conditions") shall apply to any and all offers, declarations of acceptance and contracts made by Henkel AG & Co. KGaA, Henkel Wasch- und Reinigungsmittel GmbH and Schwarzkopf Henkel GmbH (hereinafter each referred to as "Seller") regarding the delivery of products (hereinafter "Deliveries"), including consultancies and any other ancillary services in relationships with entrepreneurs, legal entities under public law and special funds under public law (hereinafter uniformly referred to as "Purchaser"). Any and all conditions of the Purchaser which deviate from or complement these Sales Conditions shall only apply to the extent that the Seller has explicitly acknowledged such conditions in writing. This shall apply in particular also if the Seller executes Deliveries in knowledge of deviating or complementing conditions of the Purchaser without any reservation or accepts any payments.
1.2 Within an ongoing business relationship, these Sales Conditions shall also apply to any and all future contracts regarding Deliveries entered into with the Purchaser.
2. Contract, Prices
2.1 The offers made by the Seller are non-binding, unless otherwise determined by the Seller.
2.2 The Seller may accept any order made by the Purchaser within two weeks after the order was issued, unless the Purchaser determines an extended term of acceptance. The Seller is not obligated to accept orders made by the Purchaser.
2.3 Any formation of a contract requires a written contractual declaration of the Seller. However, the Seller may accept any order made by the Purchaser also by executing the Delivery. Oral agreements made prior to a formation of a contract shall only be binding if the Seller confirms them in writing.
2.4 Delivery conditions, such as Incoterms clauses, which the Purchaser refers to in his order, shall only become integral part of the contract if the Seller confirms them in writing.
2.5 All prices are in Euro and calculated net plus statutory value added tax, if applicable, and exclusive of any and all other taxes, tariffs, contributions and insurances. The Purchaser shall bear any and all taxes, tariffs, and contributions in connection with the Delivery or shall reimburse them to the Seller.
2.6 If a Delivery has been agreed upon on the basis of the price list of the Seller, the prices set forth in the Seller's price list valid on the day of the formation of the contract shall apply. Any price list provided to the Purchaser is an integral part of the contract, unless it conflicts with another agreement.
2.7 The Incoterms valid on the day of the formation of the contract shall apply to any interpretation of trade terms.
3. Obligations of the Purchaser
3.1 The Purchaser may not refuse acceptance of Delivery because of minor defects.
3.2 Should the Purchaser be in default with the acceptance of the Delivery, the Seller shall be entitled to rescind the contract after having granted an appropriate grace period. Should the Purchaser be at fault for the default of acceptance, the Seller shall be entitled to claim liquidated damages for the damage caused by the Purchaser's default of acceptance (also after the Seller's rescission) in the amount of 10% of the agreed net order value of the part of the Delivery that has not been accepted. Any further claims for damages and other rights shall remain unaffected.
3.3 Any written or oral application-related advices and any other advice given by Seller shall be without engagement. It is the Purchaser's responsibility to examine the Delivery with respect to its suitability for the objectives pursued by him. This shall also apply if the Delivery is generally recommended for a particular purpose; in this case the Purchaser is also held to examine the Delivery with respect to its suitability for the specific objectives pursued by him and with respect to the operating conditions on site of the Purchaser prior to the application. The Seller shall not be liable, irrespective of the legal basis, to the extent that damage is caused by an infringement of the aforementioned obligation of the Purchaser to examine the Delivery.
3.4 The Purchaser undertakes to comply with any and all eventual property rights of third parties, such as patents or utility patents, as well as any statutory provisions in the course of the processing of the Delivery.
4. Payment
4.1 Invoiced amounts shall be paid by bank debit memo by means of an authorized collection procedure, unless the parties agreed on payment using bank transfer. Invoiced amounts are due either within 14 days with 2% discount or within 30 days net following the invoice date. Any terms of payment stated on the order confirmation or invoice, in particular with respect to the calculation of the period of time relevant for discounts, shall begin on the invoice date. Agreed discounts shall only be allowed to the extent that the Purchaser is not in default with the payment of invoiced and due amounts arising out of the business relationship between the Seller and the Purchaser. If the Purchaser is in default with payment, the Seller shall be entitled to claim interests in the amount of 8 percentage points above the respective base rate of the European Central Bank for main refinancing operations unless the Purchaser is not at fault for the default in payment. Interest for default in payment shall be immediately due.
4.2 The Purchaser may only assert a right of retention if his counterclaim against the Seller has been established by a final and non-appealable decision or is undisputed. The Purchaser may only assert a set off right if his counterclaim against the Seller is owed in the same currency and has been established by a final and non-appealable decision or is undisputed.
4.3 The Seller may request from the Purchaser to provide security prior to Delivery, if, after the formation of the contract, a significant deterioration of the Purchaser's solvency or creditworthiness becomes apparent which jeopardizes a claim of the Seller, in particular in case of a suspension of payments, a petition to open insolvency proceedings against the Purchaser's assets, in case of a bill or check protest, or in case of a seizure. If the Purchaser refuses to provide security within a reasonable period granted to him, the Seller may entirely or partially rescind the contract. Any other rights of the Seller remain reserved.
4.4 Employees of the Seller are only authorized to collect due payments upon presentation of a particular permit.
5. Delivery
5.1 Unless agreed upon otherwise and subject to Section 5.2, the Delivery will be free of shipping costs to the place of destination. The Seller will choose the transport route and the carrier according to its reasonably exercised discretion. Collection by the Purchaser shall be excluded. Cartages and demurrages at the place of destination, freight charges and supplementary freight charges for express goods and air freight shall be borne by the Purchaser in each case.
5.2 If the Seller has informed the Purchaser about any minimum order value or any minimum order amount and accepts, without prejudice to Section 2.2 2nd sentence, an order below the minimum order value or the minimum order amount, the Seller will charge the Purchaser the actual freight or shipping costs for the Delivery or the freight / shipping flat rate quoted by the Seller for these particular cases.
5.3 The weight stated at the delivering plant or the warehouse upon dispatch shall be decisive for the determination of the weight of the Delivery.
5.4 The Seller shall be entitled to partial shipments to the extent that this is reasonably acceptable for the Purchaser.
5.5 The agreed delivery time shall begin on the date of the order confirmation but not before the supply of the documents, authorizations or approvals to be furnished by the Purchaser and the fulfillment of the advance payment duties of the Purchaser.
5.6 The Seller's duty to deliver shall be subject to his own complete self-supply by his sub suppliers in due time. The Seller's duty to deliver shall also be subject to availability.
5.7 Should the Seller be at fault for a delay, the Purchaser's claim for damages due to the delay of the Seller shall be limited to 0.5% of the net value of the order regarding the delayed part of the Delivery, but the total amount shall not exceed 5% of such net value. This limitation shall not apply in case of intent or gross negligence.
5.8 If the Seller exceeds a delivery date, the Purchaser shall be entitled to set the Seller a grace period of at least three weeks including a warning of refusal. Should the Seller fail to fulfill his delivery obligation within the grace period, the Purchaser shall have the right to rescind the contract provided that the Seller is at fault for the exceeding of the delivery date. The rescission of the contract must be declared in writing at the latest within two weeks following the expiration of the granted grace period. Following the expiration of the aforementioned period for the rescission, the Purchaser shall only be entitled to rescind the contract after the expiration of an additional, adequate grace period granted by him provided that the Seller is at fault for the exceeding of the delivery date.
5.9 Any events of force majeure entitle the Seller to postpone the Delivery by the duration of the hindrance effected by the force majeure event as well as an adequate starting time. Any and all unavoidable events for which the Seller is not at fault shall be equal to force majeure events; such events equal to force majeure events are, in particular, measures in terms of monetary policy, trade policy and other sovereign measures, strikes, lockouts, significant business disruptions (such as fire, machinery breakage, lack of raw materials or energy) as well as obstruction of routes unless they are, in each case, only of a short-term duration, which significantly impede the Delivery or make it impossible. The Seller must inform the Purchaser about any events of force majeure and any equated events. Should the obstruction take longer than three months, both parties shall be entitled to rescind the contract. If partial delivery has already been made, the Purchaser shall only be entitled to rescind the contract under the aforementioned conditions with respect to such part of the Delivery that has not been executed. On the grounds of an unexecuted part of the Delivery the Purchaser may not refuse the payment of a partial Delivery which has already been executed.
6. Transfer of Risk
6.1 Unless agreed upon otherwise, the risk shall be transferred to the Purchaser when the Delivery leaves the delivering plant or the warehouse where the dispatch of the Delivery is effected, but at the latest upon handing over to the carrier. Furthermore, the risk shall be transferred to the Purchaser in the moment when the dispatch or the delivery is delayed out of reasons the Purchaser is at fault for or if the Purchaser is in default of acceptance.
6.2 The Purchaser shall bear the risk during the return transport of the Delivery regardless of whether the Delivery is returned in connection with the cure of a defect, following a rescission, if the Delivery is being taken back out of goodwill or out of any other reasons.
7. Rights due to Defects
7.1 The Purchaser shall give written notice of apparent material defects without undue delay, but at the latest within two days following the reception of the Delivery at the place of destination. The Purchaser shall give written notice of hidden material defects without undue delay, but at the latest within eight days following the discovery. Otherwise the Delivery shall be deemed as approved in regard of the material defect.
7.2 Upon request, the Purchaser shall send examples of the rejected Delivery without undue delay. The Purchaser shall bear the costs.
7.3 If a neutral sampler drew samples at the place of lading, only these shall be decisive for the assessment of the Delivery. Any original pieces of the Delivery remaining with the Seller shall be equal to neutrally drawn samples. This shall also apply to oddments from the production charge remaining with the Seller out of which the Delivery derived from.
7.4 In case of unconditional acceptance of the Delivery by any train or shipping company or any other carrier it shall be presumed that the packaging of the Delivery was impeccable upon handing over to the carrier.
7.5 The Seller shall not be liable for the legibility of any encoding (such as GTIN) placed on a Delivery. Any eventual illegibility of any encoding shall not be considered as a defect.
7.6 It does not constitute a defect if property rights of third parties, such as patents or utility patents, have been infringed, to the extent that the infringement of the property right was caused by an application which was not foreseeable for the Seller, or by a modification of the Delivery carried out by the Purchaser or by an application of them together with products which were not delivered by the Seller.
7.7 Agreements on the quality of the Delivery shall have priority over any suitability for use.
7.8 If the defect exists upon transfer of risk, the Seller shall provide the cure, at its own discretion, either by remedy of the defect or subsequent delivery. Should the cure fail, the Purchaser shall have the right to reduce the purchase price or to rescind the contract, in each case in accordance with the statutory prerequisites. The Purchaser's claims for damages or for compensation of expenses shall be governed by Section 8.
7.9 In the event of an unjustified claim for cure, the Purchaser shall be obligated to pay the Seller any damages caused by the Purchaser’s unjustified claim for cure, if the Purchaser was aware of the fact that his claim for cure was unjustified or if he was not aware of it out of negligence.
8. Damages and Compensation of Expenses
8.1 Any claims for damages and claims for compensation of expenses of the Purchaser, irrespective of their legal bases (infringement of obligations, contract, tort, etc.) shall be excluded.
8.2 The exclusion of liability pursuant to Section 8.1 shall not apply
a) in case of liability pursuant to the German Product Liability Act (Produkthaftungsgesetz),
b) in case of intent or gross negligence,
c) in case of death, injury or detriment of health the Seller is at fault for, or
d) in case of an infringement of essential contractual obligations the Seller is at fault for. Essential contractual obligations are those obligations which must be fulfilled in order to duly execute the contract and on the performance of which the Purchaser generally relies and may duly rely on. However, the Seller’s liability for an infringement of essential contractual obligations shall be limited to a reimbursement of foreseeable, contractually typical damages, unless the Seller is liable due to intent or gross negligence, for death, injury or detriment of health, or pursuant to the German Product Liability Act (Produkthaftungsgesetz).
8.3 To the extent that the liability of the Seller is excluded or limited, this shall also apply to the benefit of any statutory representatives, employees, sub-suppliers and auxiliary agents of the Seller in case the Purchaser asserts claims directly against them.
8.4 The preceding provisions do not constitute a modification of the burden of proof to the disadvantage of the Purchaser.
9. Limitation Period
9.1 The limitation period for claims arising from defects shall be one year as of the beginning of the statutory limitation period. Notwithstanding the foregoing, the statutory limitation period shall apply a) in the event of Sec. 438 (1) No. 1 German Civil Code (BGB) (real rights of a third party), recourse claims pursuant to Sec. 479 (1) German Civil Code (BGB), and fraudulent intent; b) in case of claims for damages based on intent or gross negligence, due to death, injury or detriment of health the Seller is at fault for, or pursuant to the German Product Liability Act (Produkthaftungsgesetz).
9.2 As a principle, any rectification or new supply of the Delivery carried out by the Seller is an act of goodwill and is made without acknowledgement of any legal obligation. An acknowledgement of a legal obligation causing a recommencement of the limitation period shall be deemed declared by the Seller towards the Purchaser only if the Seller declares such acknowledgement explicitly.
9.3 The standard limitation period (regelmäßige Verjährungsfrist) for any other claims of the Purchaser against the Seller shall be limited to two years as of the start of the statutory limitation period. This shall not apply to claims for damages equivalent to Section 9.1 b); these are subject to the statutory limitation period.
10. Retention of Title
10.1 The Delivery remains property of the Seller until the complete fulfillment of any and all claims arising out of the business relationship between the Seller and the Purchaser. Reservation of ownership shall also apply to new goods resulting from the processing, mixing or combining of the Delivery; however, if the Seller does not become the exclusive owner of the new good, the reservation of ownership shall apply to the respective co-ownership shares in the new good the Seller is entitled to. The processing of the Delivery is effected for the Seller as manufacturer without creating any obligation for the Seller. In case of processing, mixing or combining of the Delivery with material which is not owned by the Seller, the Seller shall always acquire co-ownership of the created new good in the ratio of the value of the Delivery to the value of the new good. If the property of the Seller is extinguished by the mixing or combining, the Purchaser transfers, already at this moment, co-ownership of the new good in the ratio of the value of the Delivery to the value of the new good and shall store the new good for the Seller for this purpose.
10.2 The Purchaser is authorized to resell the reserved goods within the course of a proper business transaction. Any other disposal, in particular any pledge, transfer by way of security or barter transaction is forbidden. The Purchaser shall immediately notify the Seller of any pledge carried out by a third party, also after the processing, mixing, or combining, as well as of any other impairment of rights held with respect to the reserved goods. Already at this moment, the Purchaser assigns to the Seller any and all claims arising in connection with the resale of the reserved goods against his customers; the Seller accepts the assignment. In the event that the Purchaser resells the reserved goods together with other goods which are not property of the Seller, the assignment of claims arising in connection with the resale shall be limited to the value of the reserved goods. If the claim arising out of the resale of the reserved goods becomes part of a current account established between the Purchaser and his customer, the assigned claim shall, following the balancing, be replaced by the recognized accounting balance which is assigned in the amount of the resale value of the respectively sold reserved goods. The Purchaser is entitled to collect the claims arising out of the resale of the reserved goods assigned to the Seller. The Seller is entitled to revoke the authorization to resell the reserved goods or to collect the claims assigned, a) if the Purchaser is in default with payments arising in connection with the business relationship; b) if the Purchaser disposed of the reserved goods outside of a proper course of business; or c) if, after the formation of the contract, a significant deterioration of the Purchaser's solvency or creditworthiness becomes apparent which jeopardizes a claim of the Seller, in particular in case of a suspension of payments, a petition to open insolvency proceedings against the Purchaser's assets, in case of a bill or check protest, or in case of a seizure. Any receivables deriving from claims assigned to the Seller which the Purchaser receives after the revocation of the authorization to collect claims must be immediately accumulated on a special account indicating the respective designation provided by the Seller. Following the revocation of the authorization to collect claims, the Purchaser must, upon request, immediately inform the Seller about the debtors owing the assigned claims in writing and notify the debtors of the assignment.
10.3 Should the Purchaser fall behind with his payment obligations with respect to the Seller or should he infringe any duty arising in connection with the reservation of ownership, the entire residual debt becomes immediately due. In these events, the Seller shall be entitled to demand the surrender of the reserved goods and to collect them from the Purchaser. Any right of possession of the Purchaser extinguishes when the Seller demands the surrender of the reserved goods. Any eventual taking back of goods shall always be for safety purposes only. The Seller's demand to return the goods does not constitute a rescission of the contract, even if the Seller authorizes the Purchaser retrospectively to pay installments.
10.4 In case any applicable law does not acknowledge a retention of title, the Purchaser shall cooperate in order to establish a comparable security right for Seller’s claims and support Seller in order to establish such comparable security right. In case any applicable law provides for additional requirements for a retention of title, such as without limitation registration requirements, the Purchaser shall cooperate in order to fulfill such requirements and support Seller in order to fulfill such requirements.
10.5 The Seller is obligated to release security interest upon request by the Purchaser, to the extent that the realizable value of the securities granted to the Seller exceeds the relevant total claim of the Seller to be secured by 10 %.
11. Returnable Packaging
The taking back of packaging which is not returnable packaging shall be governed by the provisions of the German Regulation on Packaging (Verpackungsverordnung) which was applicable at the point in time of the formation of the contract as well as by any additional agreements made.
12. Acceptance of Returns for the Sake of Goodwill
Should the Seller accept returns which he approved in advance for the sake of goodwill, he shall charge, to the extent that he does not fix any other fee upon acceptance at the latest, 20% of the net value of the order.
13. Foreign Trade and Customs Requirements, Export Control Regulations
13.1 The Seller’s obligation to fulfil the contract shall be subject to the proviso that the fulfilment is not prevented by any impediments arising out of national and international foreign trade and customs requirements or any embargos or other sanctions.
13.2 If the Purchaser transfers the Delivery in whole or in part to a third party worldwide, the Purchaser shall comply with all applicable national and international (re-) export control regulations. In any event the Purchaser shall comply with the (re-) export control regulations of the Federal Republic of Germany, of the European Union and of the United States of America.
13.3 If required to conduct export control checks, the Purchaser, upon request by the Seller, shall promptly provide the Seller with all information pertaining to the particular end customer, the destination and the intended use of the Delivery, as well as any export control restrictions existing.
13.4 The Purchaser shall indemnify and hold harmless the Seller from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by the Purchaser, and the Purchaser shall compensate the Seller for all losses and expenses resulting thereof, unless such noncompliance was not caused by fault of the Purchaser. This provision does not imply a change in burden of proof.
14. Final Provisions
14.1 To the extent that these Sales Conditions require written form, text form (letter, fax, email, etc.) shall be sufficient for the written form requirement.
14.2 These Sales Conditions do not imply any shift in the burden of proof.
14.3 The entire article master data including logistical data, dangerous goods information and periods of validity are stored in a master data pool on a corresponding data portal and shall be updated on a regular basis. Upon Purchaser’s request the Seller may grant access to the data portal to the Purchaser.
14.4 Should any individual provision of these Sales Conditions or of the contract be or become invalid, the validity of the other provisions shall remain unaffected.
14.5 Place of performance for any and all obligations of the Seller and the Purchaser arising out of the contract, including the Seller's obligation to cure a defect shall be the registered office of the Seller. Exclusive place of jurisdiction for any and all disputes arising from or in connection with the Delivery shall be Dusseldorf, Germany; this shall also apply to special procedures deciding claims arising out of a bill of exchange (Wechselprozess) and summary procedures where plaintiff relies entirely on documentary evidence (Urkundsprozess). However, the Seller shall also be entitled to take legal action against the Purchaser at the Purchaser’s place of general jurisdiction or before any other competent court.
14.6 The relationships between the Seller and the Purchaser shall be subject to the laws of the Federal Republic of Germany. The application of the United Nations Convention on the International Sale of Goods (CISG) shall be excluded.