Terms and conditions

I.  Validity

1. The following contractual terms (general terms and conditions) apply to all contracts relating to the sale of goods between Gottlieb Nestle GmbH (hereinafter: Supplier) and the customer.
2. These general terms and conditions shall apply exclusively to all deliveries and services. The customer’s general terms and conditions shall not apply, even if the Supplier does not expressly contradict them.
3. The general terms and conditions also apply to all future business relations, even if this has not been agreed upon again explicitly.

II. Offer and conclusion of contract

1. The Supplier’s offers are subject to change.
2. All agreements made between the Supplier and the customer for the purpose of the execution of this contract must be made in writing. Declarations of acceptance and orders must be confirmed in writing by the Supplier in order to be legally binding. The Supplier’s sales staff are not authorised to make verbal subsidiary agreements or to make oral agreements which go beyond the content of the written contract.
3. The Supplier retains unrestricted property rights and copyrights to drawings and other documents; they must be not disclosed to third parties.
4. The customer is not permitted to copy or imitate software and/or other programs.
5. The source code of the programs is not made available to the customer.
6. The supplier shall be allowed to take technical measures in order to protect software and/or other programs.
7. All information in the Supplier’s sales documents (in particular software and/or programs, price lists, catalogues, brochures, technical documents and digital media) are provided to the best of the Supplier’s knowledge, however, they are subject to confirmation and are non-binding. The Supplier reserves the right to make changes.

III. Prices and Payment

1. Prices shall apply ex works excluding packaging. VAT at the applicable statutory rate is added to all prices.
2. Unless otherwise specified, the Supplier shall be bound to the prices contained in its offers for 30 days from their date.
3. Within the Federal Republic of Germany, we deliver to receiving stations free of all charges, including packaging, from a net invoice amount of €1000.00. For deliveries outside Germany, we deliver ex works plus shipping and packaging costs.
4. Unless otherwise agreed, payments must be made within 30 days of the invoice date. We grant 2% cash discount for payment within 10 days of the invoice date.
5. The customer may only offset claims that are undisputed or legally ascertained.
6. In the event of a late payment, the Supplier is entitled to claim interest on arrears. The Supplier reserves the right to further claims.

IV. Delivery time and delayed delivery

1. Compliance with an agreed delivery time requires the timely provision of all documents, authorisations and approvals to be supplied by the customer. If this is not the case, the delivery time shall be extended appropriately, unless the Supplier is responsible for the delay.
2. The delivery time shall be met if the delivery item has left the Supplier’s factory or if readiness for dispatch has been notified before the deadline lapses.
3. The Supplier cannot be held responsible for delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for the Supplier, and not just on a temporary basis e.g. strike, lockout, official orders etc., even if they occur with suppliers or their subcontractors, and even if binding dates and deadlines have been agreed on. This entitles the Supplier to defer delivery or performance by the duration of the hindrance plus a reasonable start-up time, or to withdraw fully or partially from the contract due to the as yet unfulfilled part. If the hindrance lasts more than 3 months, the customer shall be entitled to withdraw from the contract with regard to the as yet unfulfilled part after an appropriate grace period. If the delivery time is extended or if the Supplier is released from its obligation, the buyer cannot derive any claims for compensation from this. The Supplier may only invoke the circumstances mentioned if it notifies the customer immediately.
4. If the Supplier is in default, the customer may only withdraw from the contract if the Supplier is responsible for the delay and the Supplier has permitted an appropriate term for delivery accorded him to expire to no effect.
5. Further claims due to delay are determined by point VIII. If the Supplier must subsequently accept liability for non-compliance with agreed deadlines and dates or other delays, the customer shall be entitled to compensation for delayed completion to the amount of 0.5 % for every full week of delay, however not more than a total of 5 % of the invoice value of the deliveries and services affected by the delay. Further claims are excluded under all conditions, except when the delay is based at least on gross negligence by the Supplier.
6. The Supplier is entitled to partial deliveries and partial performances at all times, unless the partial delivery or partial performance is of no interest to the customer.

V. Risk transfer and shipping

1. The risk is transferred to the customer no later than at the time the purchased items are shipped, even if partial deliveries are made or the Supplier has taken on other services such as the dispatch cost or delivery.
2. If the dispatch is delayed as a result of circumstances for which the customer is responsible, the risk is transferred to the customer from the day the dispatch is ready.
3. At the request of the customer, the shipment will be insured under the customer’s information and at the customer’s own expense.

VI. Rights in the event of defects

1. The customer must check the deliveries and services for defects immediately upon receipt. If defects are identified, they must be communicated in writing immediately, but not later than within one week of receipt of the faulty goods. Defects that cannot be detected within this period, even upon careful inspection, must be communicated to the Supplier in writing immediately upon detection.
2. Defective parts of the delivery or performance shall be improved or delivered/provided again, at the Supplier’s option. In this case, the Supplier requests that, at its discretion and at its own expense
   -  the defective part or device is sent to the Supplier for repair and subsequent return;
   -  the customer holds the defective part or device and a service technician of the Supplier is sent to the buyer to carry out the repair.
   If the customer requires the repair work to be carried out at a place determined by him/her, the Supplier may comply with this demand, whereby replacement parts are not charged, whilst work time and travel costs are to be paid at the Supplier’s standard rates.
3. The customer shall give the Supplier the necessary time and opportunity to carry out all repairs and replacements deemed necessary by the Supplier. Otherwise, the supplier shall be exempt from liability for the consequences.
4. In the event of inappropriate or improper use or commissioning by the customer or by third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, and unsuitable operating resources, no claims for defects may be lodged if the customer cannot disprove a substantiated assertion that even one of these circumstances caused the defect. If improper modifications or repair work is carried out by the customer or third parties, no claims for defects may be lodged for these and the resulting consequences, in accordance with the predicted consequences.
5. Replaced parts shall become the property of the Supplier.
6. The period of limitation for warranty claims by the customer is 24 months, calculated from the passing of risk to customer. Warranty claims for software and/or programs, batteries, particularly with regard to their performance, are, as a rule, only recognised within 6 months from delivery.
7. Returns are only accepted after prior agreement with the Supplier.

VII. Voluntary return of goods

If we accept the return of goods delivered free of defects as a gesture of goodwill, a reasonable processing fee shall be included with the credit note. Returns must be delivered postage paid, after prior agreement with the Supplier.

VIII. Liability

1. Regardless of the nature of the infringement, including unlawful acts, claims for damages are excluded, unless deliberate intent or gross negligence is involved.
2. In the event of violation of essential contractual obligations, the Supplier shall be liable for any negligence, but only up to the amount of the foreseeable damage.
   Claims cannot be made for lost profits, saved expenses from compensation claims of third parties, or for any other direct or consequential loss, unless the Supplier has guaranteed a particular quality characteristic of the product with the purpose of safeguarding the customer against such losses.
3. The customer releases the supplier from any liability towards third parties, which result from or in connection with services and/or deliveries, which the supplier has provided and/or performed on behalf of the customer.
4. The liability restrictions and exclusions in paragraphs 1 and 2 shall not apply to claims that have arisen due to fraudulent behaviour on the part of the Supplier, or where there is liability for guaranteed quality characteristics, for claims in accordance with the product liability law, or for compensation claims resulting from injury to life, limb or health.
5. Where the Supplier’s liability is excluded or restricted, this also applies to the seller’s employees, representatives and vicarious agents.

IX. Reservation of proprietary rights

1. The goods shall remain the property of the Supplier until all claims are fulfilled (including all current account balance claims) which the Supplier may be entitled to from the customer now or in future.
2. The customer shall be entitled to process and, in particular, to sell the reserved goods within the course of orderly business practices, provided the customer is not in default. Pledging or transfer of ownership by way of security is not permissible. Any debts arising from the resale or any other legal ground (insurance, unlawful acts etc.) with respect to the reserved goods (including all current account balance claims) shall be assigned fully by the customer to the Supplier now for insurance purposes. The Supplier revocably authorises the customer to collect the claims assigned to the Supplier for its invoices and in its own name. This authorisation to collect can only be revoked if the customer fails to honour its payment obligations in an orderly fashion.
3. In the event of third-party access to the reserved goods, especially in the case of pledging, the customer shall notify them that this is the property of the Supplier and inform the Supplier immediately so that it may assert its property rights. If the third party is not able to refund the Supplier the appropriate judicial or extrajudicial costs in this context, the customer shall be liable for this.
4. In the event of behaviour by the customer that is contrary to the contract, especially default of payment, the Supplier shall be entitled to withdraw from the contact and reclaim the reserved goods.

X. Applicable law, partial invalidity

1. The law of the Federal Republic of Germany shall apply to these terms and conditions and all legal relations between the Supplier and customer. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply here, even if the customer has its headquarters abroad.
2. If the Customer is a businessman, the headquarters of the Supplier shall be the exclusive place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship.
3. If any provision in these terms and conditions or a provision within the framework of other agreements is or becomes invalid, this shall not affect the validity of all other provisions or agreements.

Effective 08/2022