General Terms and Conditions for the firm cadocare GmbH, Boschstr. 22, D-52531 Übach-Palenberg (in the version dated May 14th 2018)
§ 1 Scope
(1) The following General Terms and Conditions (hereinafter referred to as “T&Cs”), in the version valid at the time of the respective declaration or action, apply to all our offers, deliveries and services as well as other actions and declarations.
(2) The following contractual conditions apply exclusively to the contractual relationship. cadocare GmbH does not accept terms and conditions that contradict or deviate from the following terms and conditions of sale that were made before or at the conclusion of the contract, unless otherwise expressly agreed in writing. cadocare GmbH is not bound by other contradictory terms not approved even if cadocare GmbH does not expressly object. The same applies if cadocare GmbH delivers the ordered goods in whole or in part or accepts payments.
(3) The T&Cs only apply to companies, legal entities under public law and public special funds. These persons are uniformly referred to as “business partners” within the framework of these T&Cs. An entrepreneur is any natural or legal person or partnership with legal capacity with whom a business relationship is entered into and who acts in the exercise of a commercial or self-employed professional activity.
(4) By sending an offer to conclude a contract or by accepting the offer of cadocare GmbH, the business partner agrees to the validity of these T&Cs.
(5) If a permanent business relationship is agreed, the T&Cs apply to the entire business relationship, i.e. also to all subsequent orders, even if in individual cases no explicit reference is made to the validity of the T&Cs.
§ 2 Conclusion of contract; terms of delivery/service
(1) The offers of cadocare GmbH are non-binding. cadocare GmbH is entitled to accept orders within two weeks after receipt of the order by sending an order confirmation or to send the ordered goods to the business partner.
(2) Services ordered in addition to an offer will be charged additionally.
(3) We reserve the right to change prices accordingly if cost reductions or cost increases occur after conclusion of the contract. The changes will be proven to the business partner upon request. For advance orders, the conditions at the time of delivery apply.
(4) Unless otherwise agreed, prices are quoted ex works, in euro.
(5) Products listed in our product catalogues, brochures or other product sheets or descriptions, possibly with price information, do not constitute binding offers for us, but merely an invitation to the business partner to submit an offer.
(6) By submitting the order, the business partner submits a binding offer in accordance with § 145 German Civil Code (Bürgerliches Gesetzbuch, BGB) to purchase the product (the goods) concerned.
(7) In any case, the purchase contract is only concluded upon receipt of the written declaration of acceptance by us. The description and essential characteristics of the goods are then determined according to the information in the order and order confirmation, the provision in paragraph 9 shall remain unaffected.
(8) All products and prices in our product catalogue are subject to availability and delivery by us and while stocks last. In the event of non-availability or only partial availability or lack of delivery by us of the ordered goods, we will inform the business partner immediately. If such circumstances emerge after conclusion of the contract, the business partner can withdraw from the contract in this case, whereby payments already made by the business partner shall be reimbursed.
(9) We have carefully compiled the product details and information in our product catalogue as well as in our brochures, product sheets etc. Nevertheless, it cannot be ruled out that printing errors may occur in individual cases or that deviations, including price changes, may occur in the case of custom-made products. For this reason, we accept no liability for the accuracy and completeness of figures in product catalogues, brochures, product sheets or other product descriptions, unless otherwise expressly agreed.
(10) Delivery times stated by us concern deliveries ex works and are not binding in individual cases unless otherwise agreed in writing and these may change. If there are technical or organisational questions, the delivery period only begins upon their clarification. We reserve the right to plead non-performance of contract.
(11) If a delivery has been agreed, the business partner instructs us to deliver the ordered goods to the delivery address specified by the business partner at the cost and risk of the business partner. In this case, the material risk shall pass to the business partner upon handover to the properly selected transport person commissioned by us (“Schickschuld”, obligation whereby the seller is obliged to deliver the goods to the purchaser’s place of business). This shall also apply in exceptional cases where it has been agreed that we shall bear the costs of transport. At the request of the business partner, we will insure the goods at their expense against transport risk. In exceptional cases where it is has been agreed that the object of sale shall be delivered by us to the business partner on our business premises on the basis of a separate agreement (“Holschuld”, the general principle that the goods are to be delivered at the domicile of the seller), the risk shall pass at the time when we or the sales person commissioned by us informs the business partner that the object of sale is ready for collection. If the dispatch or acceptance of the goods ready for dispatch is delayed due to circumstances for which we are not responsible, the risk shall pass to the business partner upon receipt of the notification of readiness for dispatch.
(12) We shall not be obliged to comply with agreed delivery periods in the event of disruptions to operations and/or transport facilities due to force majeure. This includes in particular fire, explosion, floods, piracy, terrorist attacks or threats, official orders and measures through no fault of our own, strikes and lock-outs, shortage of raw materials, subsequent loss or restriction of export or import possibilities, e.g. due to embargoes, natural forces, war, riots, arson or similar events or other comparable circumstances with us, our logistics partner entrusted with the delivery, the manufacturer or with the supplier entrusted with the delivery of the materials required for production, in which case we are released from the obligation to deliver on time. In this case we are also entitled to withdraw from the contract in whole or in part if the delivery of the object of purchase becomes significantly more difficult or impossible due to force majeure or due to events which occurred after conclusion of the contract or only then became known to us through no fault of our own.
(13) We reserve the right to make correct and timely deliveries if these are not made through no fault of our own, the agreed delivery period shall be extended accordingly.
(14) Claims for damages or other claims of the business partner arising from delayed or non-performance of delivery are excluded, unless they are based on intent or gross negligence. Any fault on the part of our representatives or vicarious agents is to be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage. The right of the business partner to withdraw from the contract remains unaffected, but can only be exercised if implementation of the contract has become unreasonable for the business partner in view of the delay that has occurred.
(15) Returned packaging and equipment material will not be refunded.
(16) Provisions of the national labelling regulations are to be complied with by the final seller in each case.
(17) We are entitled to suspend delivery immediately and are released from the fulfilment of current delivery orders if the business partner does not meet his payment obligations, is in default of payment, files for the opening of insolvency proceedings or if such proceedings are otherwise filed or are rejected for lack of assets, discontinues payments, the company owner changes due to payment difficulties, a cheque or bill is protested or the business partner does not comply with our request to provide sufficient securities for the existing claims, unless the business partner fulfils the purchase price payment in advance. Cheque payments are not accepted in these cases.
§ 3 Purchase price, due date, method of payment, exclusion of objections for invoices
(1) All invoice amounts are payable in net cash within 10 days of the invoice date, unless otherwise agreed. Value added tax is not included in our prices and is shown separately in the invoice at the statutory rate on the day of invoicing.
(2) Interest of 9 percentage points above the respective base interest rate of the ECB shall be charged on receivables due from the contractually agreed due date. The interest to be calculated is the gross final amount of the due invoice. Further claims, in particular the right to assert a higher damage caused by default, remain unaffected by this.
(3) In case of payment by bill of exchange or cheque we reserve the right of acceptance. Postdated checks are not accepted. Otherwise bills of exchange and cheques shall only be credited on account of performance subject to the correct receipt of the full amount.
(4) The business partner is only entitled to offset or withhold payments in the event of undisputed, legally established or fully acknowledged counterclaims. The exercise of a right of retention also requires that the counterclaim is based on the same contractual relationship.
(5) We are entitled to offset against all claims of the business partner in accordance with the statutory regulations.
§ 4 Retention of title
(1) All delivered goods, even if they are paid for in full but still remain at the business partner’s premises, remain the property of cadocare GmbH until payment of all existing and future claims arising from the business relationship has been made in full.
(2) The business partner is entitled to process and sell the goods subject to our retention of title within the framework of their normal business operations.
(3) The business partner does not acquire ownership of the new item through processing or transformation. Processing is always carried out by the business partner on our behalf. If the goods subject to our retention of title are processed with other objects not belonging to cadocare GmbH, cadocare GmbH acquires co-ownership of the new object in the ratio of the invoice value of the reserved goods (invoice value, including VAT) to the invoice value of the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of purchase delivered under reservation of title. However, the assignment is only valid up to the amount corresponding to the value of the reserved goods invoiced by cadocare GmbH.
(4) If the reserved goods are inseparably mixed with other objects not belonging to cadocare GmbH, cadocare GmbH acquires co-ownership of the new object in the ratio of the invoice value of the reserved goods (invoice value, including VAT) to the invoice value of the other mixed objects at the time of mixing. If the mixing takes place in such a way that the object of the business partner is to be regarded as the main object, it is agreed that the business partner transfers proportional co-ownership to cadocare GmbH. The business partner keeps the resulting sole ownership or co-ownership for cadocare GmbH.
(5) The business partner now already assigns his claims against his customers or third parties from the resale of the reserved goods as security to cadocare GmbH without the need for further declarations. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the business partner assigns to cadocare GmbH that part of the total price claim which corresponds to the price of the reserved goods invoiced by cadocare GmbH.
(6) The business partner is authorised to collect the claim against their customer or third parties even after the assignment. The authority of cadocare GmbH to collect the claim itself remains unaffected by this. However, cadocare GmbH will not collect the claim as long as the business partner meets their payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, cadocare GmbH can demand that the business partner informs it of the assigned claims and their debtors, provides all information required for collection, hands over the associated documents and informs the debtors (third parties) of the assignment. Irrespective of this, the seller is also otherwise obliged, upon request, to provide information or invoice about the existing stock of goods, about the processing or combination of the reserved goods with third-party goods as well as about the claims arising from the resale.
(7) The business partner assures that at the conclusion of this contract there is no global assignment to another party.
(8) In the event of seizures or other interventions by third parties, the business partner must inform cadocare GmbH immediately in writing and object to the interventions with reference to the property of cadocare GmbH. In case of seizure, the notification is made so that cadocare GmbH can file an action in accordance with § 771 of the Code of Civil Procedure (Zivilprozessordnung, ZPO). If the third party is not in a position to reimburse cadocare GmbH for the judicial and extrajudicial costs of an action according to § 771 of the Code of Civil Procedure, the business partner of cadocare GmbH is liable for the resulting loss.
(9) cadocare GmbH undertakes to release the securities to which it is entitled at the request of the business partner to the extent that the realisable value of the securities exceeds the claims to be secured by more than 10%.
§ 5 Warranty of cadocare GmbH
(1) If the goods are not free of material defects upon transfer of risk or if material defects occur within the warranty period due to manufacturing or material defects, we may, at our discretion, choose between rectification of defects or replacement delivery in accordance with the following provisions. If the rectification of defects or the replacement delivery fails within a reasonable period, the business partner may, at his discretion, demand a reduction of the purchase price or withdrawal from the contract in accordance with § 8. The business partner must notify cadocare GmbH in writing and without delay of the exercise of any of these rights. In the case of rectification of defects or replacement delivery, cadocare GmbH is obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, provided these are not increased by the fact that the object of purchase was brought to a location other than the place of performance. In all other respects, the statutory provisions shall apply, unless otherwise agreed.
(2) The assertion of a further claim by the business partner in addition to his rescission is excluded.
(3) No warranty shall be assumed for defects for which the business partner is responsible, in particular due to improper handling of the delivered goods.
(4) The business partner must immediately, but at the latest within 4 calendar days after receipt of the object of purchase, examine the object of purchase for any defects and notify cadocare GmbH in writing immediately, but at the latest within 7 further calendar days, of any recognisable defects, including shortages or incorrect information on defects, as well as any quality characteristics that differ significantly from the contractual agreement. If the business partner fails to give notice in due time and in due form and any complaints regarding the delivery quantity have not been noted on the delivery note or consignment note, the object of purchase shall be deemed to have been approved, unless it is a defect which was not obvious upon inspection. If such a defect is discovered later, the notification must be made in writing immediately after discovery, but at the latest within 7 calendar days after discovery. Otherwise, the object of purchase shall be deemed to have been approved even in view of this defect. The aforementioned notification and notification obligations together with legal consequences apply accordingly to incorrect deliveries and quantity differences.
(5) Obvious transport damages are to be reported to the delivering transport person upon receipt of the consignment and acknowledged by them. In addition, the invoice number of the object of purchase concerned must be provided.
(6) If a warranty claim is asserted, this must be reported to us: cadocare GmbH, Boschstr. 22, 52531 Übach-Palenberg, telephone: +49(0) 2451-94349-0, fax: +49(0) 2451-94349-99.
(7) If a notification is made, we will arrange for the relevant goods to be collected. Upon collection of the goods, the corresponding proof of purchase, as well as a completed and signed complaint form must be handed over to us in addition to the goods.
(8) In the case of official inspection of goods delivered by us, we shall be given the possibility of counter-inspection by leaving an original control sample.
(9) Weight deviations due to drying out or commercial shrinkage are possible.
(10) In the case of given analyses, the values given are subject to the usual fluctuations for natural products.
(11) Defect-related claims for damages and other warranty claims lapse after one year. The statute of limitations in the event of a delivery recourse according to §§ 478, 479 of the German Civil Code (BGB) remains unaffected; it amounts to five years, calculated from delivery of the defective item.
§ 6 Liability of cadocare GmbH
(1) Unless otherwise expressly agreed in these T&Cs, cadocare GmbH is liable for physical injury (damage from injury to life, limb or health) based on a breach of duty by cadocare GmbH, their legal representatives or vicarious agents, as well as for other damages which are based on an intentional or grossly negligent breach of duty by cadocare GmbH, its legal representatives or vicarious agents. Furthermore, we are liable in accordance with the Product Liability Act.
(2) In addition, we shall only be liable for other damages resulting from a negligent breach of material contractual obligations (so-called “cardinal obligations”) by us, our legal representatives or vicarious agents. In this sense, such obligations are essential, the fulfilment of which is essential for the proper execution of the contract and on whose compliance the business partner may regularly rely. In these cases, our liability shall be limited to the foreseeable average damages typical of this type of contract.
(3) Beyond the above provisions, liability is excluded irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for damage to property in accordance with § 823 of the German Civil Code (BGB). The limitation according to sentence 1 also applies if the business partner demands reimbursement of useless expenses instead of a claim for damages instead of performance. As far as the liability for damages towards cadocare GmbH is excluded or limited, this also applies with regard to the personal liability for damages of employees, representatives and vicarious agents of cadocare GmbH.
(4) The above provisions shall apply to non-contractual claims for damages accordingly.
§ 7 Warranty and liability of the business partner
(1) The business partner guarantees and is liable that the goods delivered by them take into account all applicable legal, official and customary German and European regulations and in particular quality standards as well as REACH requirements.
(2) We reserve the right to have the delivered goods randomly tested by an independent accredited laboratory for compliance with the provisions of the aforementioned paragraph 1. The business partner shall bear the examination costs in the event that the delivered goods do not comply with the provisions of paragraph 1.
(3) All delivered goods must be marked in accordance with German and European regulations, in particular the German Food and Feed Code (Lebensmittel-, Futtermittelgesetzbuch).
(4) The business partner shall be liable in accordance with the statutory provisions, unless otherwise expressly agreed in writing in the contract. The application of § 377 of the German Commercial Code (Handelsgesetzbuch, HGB) is excluded.
(5) If cadocare GmbH takes back goods subject to retention of title, exempting the business partner from their obligation to accept them, we can demand 25% of the invoice value of the goods subject to retention of title as compensation for non-performance. The proof of a higher damage remains unaffected by this.
§ 8 Rescission
(1) We may withdraw from the contract in whole or in part after a significant breach of duty by the business partner after we have unsuccessfully set a reasonable deadline for performance or subsequent performance. A deadline is not necessary if it is unreasonable for us. The statutory provisions on the dispensability of setting a deadline remain unaffected. The business partner is obliged to surrender the goods. The taking back or assertion of the reservation of title or the seizure of the reserved goods by cadocare GmbH does not constitute a withdrawal from the contract, unless cadocare GmbH has expressly declared this.
(2) A withdrawal is also possible in accordance with § 2 paragraph 12 if the delivery of the object of sale becomes considerably more difficult or impossible due to force majeure or due to events which occurred after conclusion of the contract or only then became known to us through no fault of our own.
(3) If the delay in the cases of paragraph 2 lasts longer than one month, the business partner is entitled to withdraw from the contract after setting a reasonable deadline.
(4) Otherwise, the business partner can only withdraw from the contract due to a breach of duty by cadocare GmbH, which does not consist of a defect, if the breach of duty is considerable and cadocare GmbH is at fault.
(5) In all other respects, the statutory withdrawal provisions shall apply.
§ 9 Written form
Any agreement made between us and the business partner is only legally valid if it has been made in writing between the parties. Other additional terms or contractual clauses introduced by the business partner shall be deemed to be rejected as long as we have not agreed to these additional terms in writing.
§ 10 Other obligations of the business partner
It is prohibited to resell items which have suffered a deterioration of any kind since delivery or to which non-standard modifications have been made or which were already defective upon delivery and whose defect has not been remedied by way of subsequent performance.
§11 Data protection information; consent to processing personal data
(1) cadocare GmbH has to rely on the business partner transmitting certain personal data (especially his name, address, email address and possibly the bank details) with his offer for conclusion of a purchase contact. “Personal data” shall be understood as information relating to an identified or identifiable individual. An “identifiable” individual is a person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, or other specific factors. This personal data allows us to implement and process the purchase, especially to carry out the necessary correspondence, to transfer and hand over the purchase item and for invoicing, to carry out claim management and to exercise or defend legal claims. Furthermore, we may use personal data to send the business partner direct advertising letters in printed or electronic form as part of certain advertising campaigns.
(2) If the business partner therefore decides to submit an offer to purchase products from cadocare GmbH, he voluntarily consents to the transmission of this personal data to cadocare GmbH and its use in accordance with the following sections 3 and 4.
(3) The legal basis for processing personal data is Art. 6 sec. 1 lit. f GDPR if required for fulfilment of the contractual obligations. The legal basis is Art. 6 sec. 1 lit. a GDPR if data processing is based on the consent of the business partner. Processing and storage of this data takes place at cadocare GmbH for the purposes stated in section 1 according to the legal regulations of the German Federal Data Protection Law (BDSG) and the German Telemedia Act (TMG) as well as the EU General Data Protection Regulation (GDPR). Data is not passed onto third parties with the exception of companies involved with processing the contract such as logistics companies and debt collection companies.
(4) Personal data shall be deleted by cadocare GmbH as soon as it is no longer required for the purposes of proper accounting and for exercising or defending legal claims or to carry out advertising campaigns. The data shall also be deleted if the business partner appeals to use of the personal data for the future and cadocare GmbH no longer requires it for the purposes of proper accounting and for exercising or defending legal claims. The legal retention periods for accounting documents is currently 10 years starting with expiry of the year in which the business transaction took place i.e. in case of appeal to use for the future, the data shall only be deleted after expiry of the above-mentioned deadline.
(5) The following party is responsible for storage and use of personal data:
Tel.: +49 (0) 2451 94349-0
(6) The business partner has the right to receive free information on the data relating to the business partner saved by cadocare GmbH. Furthermore, he has a right to ask cadocare GmbH to correct and/or complete his personal data, provided the processed personal data is incorrect or incomplete. Instead, the business partner can also demand restriction of the use of personal data, which means that this data may be processed – apart from storing it – only with consent or to assert, exercise or defend legal claims or to protect the rights of another individual or legal person or for reasons of important public interest to the Union or a member state.
(7) The business partner has the right to withdraw consent to storage and use of data at any time, this taking effect in future. The appeal can be made verbally, in writing, by fax or in any other text form (e.g. by email) to cadocare GmbH to the contact data in the above section 5. In case of appeal, cadocare GmbH shall no longer use the personal data for advertising campaigns in future and shall also delete the data at the earliest possible time. The business partner is informed that consent can be withdrawn without affecting the legitimacy of the processing of personal data that was carried out based on the consent before it was withdrawn.
(8) The business partner also has the right to object at any time, for reasons that arise due to his special circumstances, against the processing of personal data concerning him, which is not required to fulfil contractual or legal obligations; this also applies to profiling based on this regulation.
(9) The business partner is entitled to demand that cadocare GmbH promptly deletes the personal data concerning him if (a) personal data is no longer required for the purposes for which it was collected or otherwise processed, or if (b) the business partner withdraws his consent upon which processing according to Art. 6 sec. 1 lit. a or Art. 9 sec. 2 lit. a GDPR was based and there is no other legal basis for processing, or if (c) an objection against data processing is lodged and there are no superior, legitimate reasons for processing, or if (d) personal data has been processed illegally, or if (e) deletion is required to fulfil a legal obligation according to Union law or the laws of the Federal Republic of Germany. The right to deletion does not exist if processing is necessary (a) to exercise the right to free expression of opinion and information or (b) to fulfil a legal obligation, which takes place for processing according to EU law or the law of the Federal Republic of German, or to perform a task that is in the interest of the public or to exercise a public authority, which has been transferred to us (c) due to public interest reasons in the area of public health or (d) to enforce, exercise or defend legal claims.
(9) If the business partner has asserted the right to correct, delete or restrict the processing of his personal data with regards to us, then we shall be obligated to inform all recipients to whom the personal data has been disclosed of this correction or deletion of data or restriction of processing, unless it proves impossible or it would involve unreasonable expense. Furthermore, we shall be obligated to inform the business partner about these recipients on request.
(10) The business partner has the right to receive the personal data concerning him which he has provided to us, in a structured, commonly used and machine-readable format. Furthermore, he has the right to demand that this data is transmitted to another responsible party without restriction by us if (a) processing is based on consent as per Art. 6 sec. 1 lit. a GDPR or Art. 9 sec. 2 lit. a GDPR or a contract as per Art. 6 sec. 1 lit. b GDPR and (b) processing takes place with the aid of an automated procedure.
(11) Irrespective of another regulatory or legislative remedy, if the business partner is of the opinion that cadocare GmbH is in breach of the valid data protection regulations by processing the data relating to him, the business partner has the right to complain to the state commissioner for data protection for North-Rhine Westphalia, or another regulatory authority, in particular in the member state of the place of the alleged breach.
(12) It is the responsibility of the business partner to inform cadocare GmbH about a change to his personal data so that we can promptly amend the saved data accordingly and can delete incorrect data.
§ 12 Final provisions
(1) The law of the Federal Republic of Germany shall apply.
(2) Place of performance and exclusive place of jurisdiction is the registered office of cadocare GmbH, Übach-Palenberg. However, cadocare GmbH is also entitled to sue the business partner at the court of their place of residence.
(3) The provisions of the CISG (United Nations Convention on Contracts for the International Sale of Goods or UN Sales Law) shall not apply.
(4) The business partner is informed that personal and company-related data is stored and processed by cadocare GmbH in compliance with the provisions of the Federal Data Protection Act.
(5) Should one of the above provisions become invalid, this shall not affect the validity of the remaining provisions. In such a case, the contracting parties shall make a legally effective substitute provision that comes as close as possible to the invalid provision in economic terms. The same shall apply in the event of a gap in the contract that needs to be filled. Übach-Palenberg, 15th December, 2017, cadocare GmbH.