General Terms and Conditions, version 04/2019
§ 1 Deliveries
The following General Terms and Conditions exclusively apply to all deliveries and services provided by Cosmetic Service. In order to be effective, deviations from these conditions - in particular the applicability of the customer’s purchasing conditions - require express written confirmation by Cosmetic Service.
§ 2 Price quotations and conclusion of contract
Prices are valid only with a written proposal by the managing director and a project leader, or by 2 project leaders. Deliveries abroad may be subject to customs duties, taxes, shipping costs and fees, which are not included in the total price shown. Orders become binding only upon a written confirmation by Cosmetic Service. Verbal agreements are binding only if they are confirmed in writing by Cosmetic Service.
§ 3 Order quantities
Unless expressly agreed otherwise in writing, the ordered amount is deemed to be an approximate indication of quantity. Deviations of 10% upwards or downwards are permitted. This also applies to partial deliveries from call-offs.
§ 4 Assemblies and raw materials
In the event that the customer specifies the procurement of assemblies, assembly parts, and raw, auxiliary, or process materials, the customer is obliged to accept and pay in full for the assembled packages, assembly parts, and raw, auxiliary, or process materials provided by the sub-suppliers of Cosmetic Service, and indeed within a specified period:
- for once-off orders, within 2 weeks of delivery of the finished product;
- for call-off or blanket orders, after 2 weeks following the end of the agreed duration or quantity.
Cosmetic Service accepts no liability for the quality and characteristics of the assemblies, assembly parts, and raw, auxiliary, or process materials.
§ 5 Prices and payment conditions
In general, value added tax and excise duty at the legal rates shall be added to the prices of Cosmetic Service. The invoiced price is payable without deduction upon delivery of the goods, unless something to the contrary was specifically agreed.
§ 6 Customs duties
For deliveries to areas outside of Germany, the customer is responsible for the customs duties, their processing, and the liability for their fulfilment.
§ 7 Due date, arrears, ban on offsetting and withholding
Cosmetic Service reserves the right to invoice interest for payments due or in arrears, at the legally permitted rate. In the event of arrears, Cosmetic Service also has the right to claim further damages for arrears. If arrears in payment are not made good within an appropriate grace period, then Cosmetic Service also has the right to withdraw from the contract or to claim damages for non-fulfilment; this also applies in particular to agreed but not yet executed follow-up business. The customer has a right to withhold or offset only with respect to such counterclaims which are determined to be undisputed or of legal force; this does not apply to counterclaims arising from the same contractual relationship.
§ 8 Retention of ownership
Until complete payment including interest and costs, or until the complete redemption of bills of exchange or cheques given for this, the delivered goods remain in the ownership of Cosmetic Service. To secure the demands, until complete payment the customer transfers to Cosmetic Service the customer’s claims arising against third parties from the resale of the goods.
§ 9 Ability to pay
If the customer’s ability to pay deteriorates between the receipt of the order confirmation and the delivery, or if it subsequently becomes known to Cosmetic Service that there are serious doubts about the customer’s ability to pay, then Cosmetic Service has the right to demand early payment or payment in advance. If the customer does not fulfil such a demand, then Cosmetic Service has the right to withhold outstanding deliveries or to withdraw from the contract.
§ 10 Delivery periods
Unless otherwise agreed, the specified delivery periods and deadlines of Cosmetic Service are always deemed to be approximate, because of procurement of raw materials and packaging.
§ 11 Changes to orders and deviations
If the customer requires a change to an order after the order confirmation has been issued, then the delivery period starts only from the written confirmation of the change by Cosmetic Service. Deviations in quantities, content, weights, and colour tones caused by Cosmetic Service are permitted within the scope of the deviations customary in the trade.
§ 12 Shipping
The shipping of all goods takes place at the expense and risk of the customer. If carriage-paid delivery is agreed, then Cosmetic Service is responsible for the cost of shipping, as far as the destination railway station for tariff purposes, or as far as the delivery address. In this case, the customer is responsible for incidental expenses such as cartage, receipt of goods, etc. If the customer so desires, then freight insurance can be taken out; the costs arising are charged to the customer.
§ 13 Packaging material
Costs for packaging material are invoiced separately, unless something to the contrary has been agreed.
§ 14 Defects
a) The characteristics of the delivered goods are deemed to be approved if an approval sample has been approved in writing (e-mail, fax, or letter).
b) If an approval sample inspection was performed, then liability for defects is excluded, if the customer could have recognised them when the approval sample was inspected carefully.
c) In the event of defects Cosmetic Service is liable, as per the legal provisions, at its choice for cancellation of contract, loss, or replacement, as long as the goods under complaint are returned to Cosmetic Service.
d) The liability of Cosmetic Service for damages in relation to defects is based on § 15.
e) Defect liability claims lapse upon the expiry of the shelf life of the contracted products or 12 months after their delivery, depending on which timepoint arises first.
§ 15 Liability
a) For all claims for compensation of damages and expenses directed against Cosmetic Service because of breach of duty for which it is responsible, regardless of the legal basis, Cosmetic Service is liable in the event of slight negligence only if there is a breach of significant obligation which endangers the purpose of the contract. Otherwise, the liability of Cosmetic Service for slight negligence is excluded.
b) In the event of liability as per a) and liability without negligence, then Cosmetic Service is liable only for the typical and foreseeable damages. The assertion of wasted expenses by the customer is not permissible.
c) Cosmetic Service is not liable for the suitability of the goods for the purposes intended by the customer. Technical advice is provided to the best knowledge of Cosmetic Service. Because the actual application lies outside the influence of Cosmetic Service, and its circumstances are not foreseeable, written and verbal instructions or proposals can be issued only unbindingly. These do not relieve the customer from inspecting the products himself for their suitability for the intended purposes and processes. Cosmetic Service is liable only under section a) for advice which is provided or not provided.
d) The exclusion of liability as per the previous sections applies equally with respect to the institutions, legal representatives, managing and non-managing employees, and other vicarious agents of Cosmetic Service.
e) All claims against Cosmetic Service for damages and compensation claims lapse 12 months after delivery of the goods; in the event of tortious liability, such claims lapse 12 months from knowledge or grossly negligent ignorance about the circumstances forming the basis of the claim and about the person of the obligor. This does not apply to malice or to the cases listed in section f).
f) For assumption of a warranty of condition or for fraudulent concealment of a defect, the provisions in the above sections and in section e) do not apply to strict liability if liability exists for loss of life, bodily injury or damage to the health.
g) If goods delivered by Cosmetic Service are transported, either by the customer himself or by Cosmetic Service, in receptacles procured by the customer, Cosmetic Service is then liable only if Cosmetic Service has stated in writing the compatibility between the goods manufactured by Cosmetic Service and the receptacles. If the customer has not requested that the compatibility between the packaging material and the filled product is tested, the liability of Cosmetic Service is excluded.
h) Events of force majeure, strike, interruptions of operations, lack of raw material, state interventions, etc., for which Cosmetic Service is not responsible, absolve Cosmetic Service of any obligations. In these cases, Cosmetic Service also has the right to fully or partly withdraw from the contract. The customer can derive no claim for damages from this.
§ 16 Damage, loss, or destruction during packaging
Cosmetic Service is liable for damage, loss, or destruction of the customer’s own packaging materials or packaging components which are stored at Cosmetic Service, only if Cosmetic Service causes these through gross negligence or malice.
§ 17 Confidentiality
Cosmetic Service and the customer undertake to maintain the strictest confidentiality about the collaboration and all information, and not to pass this on to third parties.
The obligation does not apply to information:
a) which becomes or has become publicly known without neglect of duty by Cosmetic Service or an authorised person, and therefore counts as state of the art;
b) which Cosmetic Service or its legal predecessor already knew when the contract was concluded, independent of the customer and outside of any contractual obligations or confidentiality agreements with third parties, because it was generally known;
c) for test institutes (e.g. for microbiology, safety assessments, epicutaneous testing, etc.);
d) for official bodies.
The party which claims that the information was already generally known must prove that this was the case.
§18 Place of jurisdiction, place of execution, and applicable law
The place of jurisdiction and place of execution for both parties is Frankfurt am Main. However, Cosmetic Service also has the right to sue the customer at his general place of jurisdiction. The law of Germany applies to all deliveries and services provided by Cosmetic Service.
§ 19 Partial ineffectiveness
If any of the individual previous clauses are or become ineffective, then all other clauses continue to retain their validity.
§ 20 Privailing German version
These General Terms and Conditions shall be interpreted according to German interpretation of law. If the legal meaning of a translation differs from the German legal meaning, the German meaning shall prevail.
Cosmetic Service GmbH Eppertshausen
The Board of Management