Terms and Conditions
- Scope of Application
These General Terms and Conditions (hereinafter referred to as "Terms and Conditions") apply between Pure Care Germany GmbH & Co. KG and/or its affiliated companies within the Pure Care division of Schwan-STABILO Group (hereinafter referred to as "Pure Care", "we" or "us") and its contractual partners. The Terms and Conditions apply only to merchants within the meaning of the German Commercial Code (HGB), legal entities under public law or special public funds within the meaning of § 310 para. 1 BGB - the German Civil Code (hereinafter referred to as "Client").
By placing an order, the Client acknowledges and agrees to the exclusive application of our Terms and Conditions. Our silence regarding the Client's terms and conditions shall in no way be considered acceptance on our part, even if such terms and conditions are known to us. Our delivery of goods and/or performance of contractual obligations shall not be considered binding acceptance of the Client's terms and conditions. With respect to merchants, these Terms and Conditions shall also apply to all future business transactions between the parties.
All offers, deliveries, and other services (hereinafter referred to as "Services") from Pure Care, including all future services, are performed based on these Terms and Conditions.
- Offer and Conclusion of Contract
Our offers are non-binding and subject to change. Orders become legally binding only with our written confirmation. Documents that are part of the offer, such as illustrations, drawings, weights, or measures, and other technical specifications, as well as DIN, VDE, or other company or inter-company standards and samples, are approximate values common in this field unless specified as binding in the order confirmation. Under no circumstances does this information constitute a guarantee of quality or durability. As a result of technical advancements, the ordered or delivered goods may differ from those specified in the order, especially concerning material, color, and design. Our written order confirmation takes precedence regarding the content and scope of the contract. Additional agreements, modifications, supplements, etc., will only be effective with our written confirmation.
If delivery and/or other performance occurs more than four months after the conclusion of the contract and if personnel or material costs or supplier prices subsequently increase, we are entitled to increase the contractual price accordingly.
For technical reasons, the delivery of the ordered quantity may be subject to a tolerance of +/- 10%.
- Prices, Payment Terms, and Methods
All prices are for delivery from the factory or our commercial offices, including loading but excluding packaging, transportation costs, and VAT, which are also borne by the Client.
Our invoices are generally payable in EURO without deduction of fees, i.e., charges. Additionally, the general payment terms stated in the order confirmation apply. In case of late payment, default interest of 8% of the invoice amount will be charged. If the Client uses the services of a central accounting company, debts will be considered settled only when payment has reached our account.
Offsets against our claims are permissible only if the Client can offset them with claims legally established in the Client's favor or with claims we have acknowledged. The same applies to merchants concerning the right to retain amounts specified in our invoices. Concerning merchants, the right to claim setoff against any payment request subject to legal proceedings is excluded.
If the Client is in arrears with payment of at least two invoices, all our invoices become immediately due. In such a case, we may, contrary to any prior agreements, require advance payments and guarantees. Furthermore, we are authorized, without needing additional explanations, to withdraw from any agreements with the Client, in whole or in part, as well as to claim compensation.
- Delivery
The delivery dates stated by us are generally non-binding.
Deliveries are FCA according to Incoterms in their most current version at the location specified by Pure Care.
Concerning merchants, liability for damages in the event of delay is limited to compensation for delay for each completed week of delay at 0.5% of the value of the relevant (partial) delivery or performance, but not more than 5% of such value.
We are entitled to make partial deliveries in usual quantities and, with appropriate notice, to make early deliveries. The shipment of all goods for delivery is at the Client's expense and risk, even in the case of agreed free delivery. In the event of damaged and/or incomplete deliveries, certification must be made immediately upon receipt. Upon delivery of the goods to the transport agents, or at the latest upon the goods leaving our factories, the risk of loss, accidental destruction, or damage passes to the Client. This also applies if and to the extent the delivery is made by our own transport services. Additionally, this applies to the risk of delayed deliveries. In the event of acceptance delays, we have the right to choose whether to store the goods at the Client's expense and risk and charge for storage costs, or to charge a one-time storage fee of 8% of the sales price of the products for each started month after the confirmed delivery date. The Client is free to prove that we have not suffered any damage or have suffered less damage as a result of the delay. Furthermore, in case of prolonged acceptance delay, we have the right, at our discretion, to offer the relevant goods for sale. This also applies to advance payments as well as in the case of non-payment despite notice.
The Client's delivery instructions will be binding only if agreed upon in writing. Otherwise, we may choose the appropriate delivery routes.
The Client's delivery instructions will be binding only if agreed upon in writing. Otherwise, we will choose what we consider to be the most appropriate delivery method, excluding any liability.
- Force Majeure
Deliveries or performances that cannot be carried out or are delayed due to force majeure or other unforeseen events beyond our control or unpredictable obstacles we or our suppliers may encounter entitle us to perform the delivery at a later date or terminate the contract entirely or partially without the Client being entitled to compensation in this respect.
This also applies if such circumstances arise, even if we are already in default with performance at the time. In such a case, and if the delayed delivery is unreasonable for the Client, the Client is also entitled to terminate the contract, with all compensation claims excluded. If we are in default regarding delivery or performance, the Client is entitled to set a delivery or performance deadline of at least 4 weeks, which must be reasonable in view of the production process, and is entitled to terminate the contract if this deadline is not met. The termination must in any case be made in writing. If the non-performance is limited to partial delivery or partial performance, the right to terminate will also be limited to the affected part, provided such limitation of the termination right does not jeopardize the objective review of the entire contract.
Force majeure under this clause means an external event introduced from the outside through elemental forces or actions of third parties that is unpredictable by human reason and experience, which cannot be prevented or averted by economically reasonable means, even with the utmost care reasonably expected under the circumstances, and which should not be accepted by the company due to its frequency. Force majeure specifically includes, but is not limited to, war, terrorist acts, administrative orders by governmental authorities, pandemics, epidemics, damage, strikes, blockades, transportation delays, and other unpredictable obstacles.
- Packaging, Marks, Proprietary Rights
The Client bears sole responsibility for complying with all packaging regulations, product identification obligations, labeling requirements, and notification requirements. The Client is responsible for ensuring that no third-party rights are violated in connection with their order and undertakes to indemnify us against any claims made by third parties.
The same applies to the artistic design and appearance of the goods, as well as the desired marketing strategy, including marketing claims. Moreover, this applies to cases where the Client has received materials or basic information from Pure Care.
When ordering goods that, at the Client's request, are labeled with the Client's or a third party's symbol or logo, the Client must ensure that they have the unrestricted right to use it. If third parties still assert claims, the Client must immediately indemnify us against these claims.
- Warranty, Liability
The following provisions apply to our warranty and other liability regarding defects in delivery or performance, including defective deliveries or services. We must be notified in writing of any complaints regarding our deliveries or services, including defective deliveries, within one week of receipt of the goods or performance of the service, or, in the case of hidden defects, within one week of the defect's discovery, provided that the Client is a merchant. If obvious defects are not reported, or if they are not reported in a timely or proper manner, the warranty will become invalid in this regard. In addition, §§377 et seq. of the German Commercial Code (HGB) apply.
If the delivered goods are repaired or modified without our involvement, or if our usage or storage instructions are not followed, our warranty will become invalid. If we use components supplied by the Client, our liability extends only to assembly and the components we supply. If we manufacture products for the Client according to the Client's advice, instructions, formulas, requirements, trademarks, packaging materials, and/or printed documentation, we are only liable for our workmanship. If we are liable to third parties for damages that are not due to our workmanship but rather to the above-mentioned advice, instructions, formulas, requirements, trademarks, etc. of the Client, the Client must fully indemnify us against all claims.
We shall not be liable for compensation for damages caused by gross negligence, except for damages caused by our agents or senior employees, nor shall we be liable for indirect damages, particularly for any consequential damages, unforeseeable damages, or atypical damages, as well as loss of profit.
We shall not be liable for any damages caused by simple negligence by our agents, employees, or representatives unless the