General terms and conditions of sale and delivery
§ 1 General
1. These General Terms and Conditions of Sale apply to all present and future contracts between
Cellofoam GmbH & Co. KG and its (general) merchant customers.
2. The contractual relations between Cellofoam GmbH & Co. KG ("Vendor") and the customer
("Buyer") are based exclusively on these General Terms and Conditions of Sale. Conflicting
conditions of the Buyer are herewith rejected. Such conflicting conditions shall only be valid with
the Vendor's explicit written consent and only for a specific contract.
3. The products delivered fulfill exclusively those standards, directives and tests that are listed in the
current version of the corresponding product leaflet or explicitly agreed in writing between
Cellofoam and the Buyer. Any expectations that the Buyer may have in regard to the products
and/or their use are not to be considered properties of the products except if expressly agreed as
such in writing.
4. All and any stipulations agreed by the Vendor and the Buyer regarding the processing of the order
are to be set down in writing in the respective contract.
§ 2 Conclusion of the Contract, Scope of the Contract
1. An order shall be deemed accepted by the written order confirmation by the Vendor.
2. All sales contracts are only concluded for certain delivery dates, quantities, articles, and qualities,
binding for both parties.
3. Modifications of an already placed order are only admissible on mutual agreement. Over and
above that, no order cancellation is permitted.
§ 3 Prices, Payment, Arrears
1. Unless otherwise stated in the order confirmation, all prices are ex works, loading at the works
included; but exclusive of freight and transportation costs, insurance, customs duties, and
statutory value added tax. These costs, duties and taxes are at the expense of the Buyer, unless
otherwise agreed. Packing will only be charged if the Buyer demands special packing.
2. The invoice will be issued on the day of delivery respectively on the date the merchandise was
made available. Postponement of invoice maturity (value date) is always excluded.
3. Invoices are payable net within 30 days of invoice date. Differing payment terms have to be
agreed in writing.
4. The relevant date for payment processing is always the outgoing postal date. For bank transfers,
the day before the amount is credited to the Vendor's account is deemed the relevant payment
5. Orders to pay, checks and drafts are only accepted if specifically agreed and only by way of
payment. All payment collection and discount charges are to be reimbursed by the Buyer.
6. Payments are always used to settle the oldest due outstanding invoices plus accumulated interest
7. Offsetting of counterclaims against the Vendor's claims is only permitted if the counterclaims of
the Buyer are undisputed, legally settled or have been accepted by the Vendor. The Buyer is only
entitled to withhold payment if his counterclaim arises from the same contractual relationship as
the Vendor's claim.
8. The Vendor is not obliged to provide any further performance on the basis of any running
contract before full payment of all due invoiced amounts including interest on arrears has been
9. Default of payment shall set in immediately after the expiry of the allowed time for payment.
No reminder is necessary.
10. If the Buyer is in default of payment, the Vendor may set a grace period of 10 days. When this
grace period has passed without result, the Vendor is entitled to withdraw from the contract
and/or to demand compensation for damages in lieu of performance. In addition, the Vendor has
the right to demand interest on arrears, at a rate of 8% over the current base rate per annum,
from the set-in of the default. Additional claims for damages are not excluded.
11. If, after the conclusion of the contract, the Vendor is notified of facts calling into question the
Buyer's solvency, the Vendor is entitled to demand full immediate payment or appropriate
securities as a pre-condition for the further processing of the order. If the Buyer does not fulfill
these conditions with in an appropriate time limit set by the Vendor, the Vendor may withdraw
from the contract. Facts calling into question the Buyer's ability to pay are for example sustained
seizures for debts or other fore-closure proceedings against him, or insolvency proceeding (in
court or out of court) that have been filed or are being filed against him. If the merchandise has
already been delivered, the entire invoice amount becomes due immediately.
§ 4 Delivery
1. All deliveries are ex works. The Buyer may choose the carrier.
2. A specific delivery deadline is agreed for each delivery. No fixed-date transactions shall be
3. Partial shipments are admissible to a reasonable extent.
4. The delivery deadline is appropriately extended in the event of disturbances due to labor
disputes, in particular strikes and lockouts, as well as in the event of other unforeseeable
circumstances beyond the responsibility and control of the Vendor insofar as these impediments
provably have a considerable influence on the manufacturing or delivery of the merchandise. This
is also valid if these impediments concern suppliers of the Vendor. The Vendor undertakes to
notify the Buyer immediately of circumstances like the aforementioned. After a period of five
weeks has expired, the Buyer may set, in writing, an additional period of two weeks for delivery,
stating that after unsuccessful expiry of this time limit he will withdraw from the contract. If the
impediments have not ended by the time the additional period expires, the Buyer may withdraw
from the contract, with claims for damages excluded.
5. In the event that the Buyer is in default of acceptance or violates his contractual obligations in any
other way, the Vendor is entitled to demand compensation for the damages caused by the default
as well as for any additional expenditures.
6. Upon request, the Vendor will enclose a test certificate according to DIN EN 10204, free of charge.
For the delivery of other documents issued/performances provided at the request of the Buyer,
the Vendor will charge a fee on a time basis.
7. The liability of the Vendor is governed by the provisions of the law if the delay in delivery is due to
intentional or grossly negligent breach of contract or to the culpable breach of an essential
contractual duty, as well as in the case of obligatory liability for damages resulting from loss of
life, physical injury or damage to health. In the case of negligent breach of an essential contractual
duty, the Vendor's liability shall be limited to foreseeable and typical damages, except in the case
of liability for loss of life, physical injury or damage to health. If the delay in delivery is due to the
culpable breach of a minor contractual obligation, the Buyer has the right to demand a flat
damage compensation of 3% of the invoiced amount for each completed week of delay, up to a
total of max. 15% of invoice value. All other claims for damage compensation are then excluded.
The Vendor is not liable for delay in delivery beyond the provisions of the present Clause 7.
8. The Buyer's legal right of withdrawal from the contract remains unaffected. But the Buyer's
withdrawal from the contract presupposes that the Vendor be responsible for the delay. On the
Vendor's request, the Buyer is obliged to declare within an appropriate time if he wants to
withdraw from the contract and/or claim damages in lieu of performance or insist on delivery.
§ 5 Passing of Risks
1. Unless otherwise stated in the order confirmation, deliveries are ex works. The shipment is
always at the Buyer's risk, even in the case of carriage-paid deliveries, when the delivery was
taken to the carrier's or picked up.
2. On request of the Buyer and at his expense, the shipment is insured against theft, breakage and
damage in transit, fire and water damage as well as against other insurable risks.
§ 6 Reservation of Ownership
1. The delivered merchandise remains the property of the Vendor until all claims, including ancillary
claims and compensations for damages, arising from the business relationship between the
Vendor and the Buyer have been paid in their entirety. The reservation of ownership continues as
well if individual claims by the Vendor have been incorporated into a current invoice and the
balance has been drawn and confirmed.
2. The merchandise on which ownership has been reserved has to be kept safe by the Buyer for the
Vendor free of charge. The Buyer is obliged to insure this merchandise to the usual extent against
typical risks such as fire, theft or water. The Buyer here and now transfers to the Vendor all claims
for compensation that - in the event of damages of the aforementioned kind - he will have against
his insurance company or other liable parties to the amount of the invoice. The Vendor herewith
accepts this transfer.
3. In the case of interventions by the Buyer's creditors, in particular in the event of seizures of the
merchandise subject to reservation of ownership, the Buyer is under the obligation to notify the
Vendor immediately and in writing. The costs for the cancellation of the intervention, including
legal costs for intervention proceedings, are considered the responsibility of the Buyer if they
cannot be obtained from the third party.
4. For the duration of the reservation of ownership, the merchandise may not be pledged,
transferred by way of security or in any other way without the explicit written consent of the
Vendor. The Buyer is authorized to resell the goods within the framework of ordinary business as
long as he fulfills his payment obligations towards the Vendor. If the Buyer resells the
merchandise subject to reservation of ownership, he here and now assigns to the Vendor all
claims and ancillary rights resulting from this sale that he will have against his customer or third
parties, regardless if the merchandise has undergone further processing prior to resale or not.
The assignment is valid until any and all the Vendor's claims resulting from the business
relationship concerning the goods subject to reservation of ownership have been paid in full. The
Vendor herewith accepts this assignment. The assigned claim is restricted to the value invoiced
for the merchandise on which ownership has been reserved. Subject to revocation, the Buyer has
the right and the obligation to collect the assigned claim in his own name. The Vendor is entitled
to ask the Buyer to notify his debtor of the assignment. On the Vendor's request, the Buyer has
to inform the Vendor of all details and to hand over all relevant documents needed for the
assertion of the assigned claim against the debtor. The Buyer herewith authorizes the Vendor to
inform the Buyer's debtor of the assignment.
5. Processing or reworking of the delivered goods by the Buyer is always undertaken on behalf of
the Vendor, without any obligations for the Vendor arising from this act. If the delivered goods
are processed together with other goods not belonging to the Vendor, the Vendor acquires
co-ownership in the new item(s). The degree of co-ownership is determined by the ratio between
the value of the delivered merchandise (total invoice value including vat) and the value of the
other processed goods at the moment of the processing. Apart from that, the item(s) resulting
from the processing are subject to the same provisions as the merchandise delivered under
reservation of ownership.
6. If the Buyer is in breach of his contractual duties, in particular regarding his payment obligations
or his duty to insure the merchandise, the Vendor is entitled to take the goods back. This
repossession does not require the Vendor's withdrawal from the contract, neither does it
constitute in itself a withdrawal from the contract, unless explicitly stated by the Vendor. All costs
resulting from the repossession of the merchandise are at the expense of the Buyer. Without
prejudice to the Buyer's liability for damages, the Vendor is entitled to assure the best possible
use of the repossessed merchandise by direct resale. The proceeds from this use are credited to
the Buyer against his overall obligations towards the Vendor, any surplus proceeds are paid out
to the Buyer.
7. The Vendor undertakes to release the securities he is entitled to insofar as their value exceeds
the value of the claims to be secured by more than 10%. The choice of the securities to be
released rests with the Vendor.
8. As soon as the Buyer has halted payments, i.e. immediately after halting of payments has been
announced, the Buyer is obliged to send the Vendor a list of the still existing merchandise subject
to reservation of ownership, including merchandise that has been processed, as well as a list of
claims towards third-party debtors plus invoice credits.
§ 7 Deficiencies in Material or Title
1. Insofar as, within the period of limitation, the merchandise shows a deficiency in material or title
("defect" in the following) the cause of which was already present at the passing of risks, the
Buyer is entitled to subsequent performance by reworking or replacement delivery, at the choice
of the Vendor. The expenditures for wages, materials, transportation, and traveling necessary for
the subsequent performance fall under the responsibility of the Vendor. The Buyer has to return
the reportedly defective merchandise to the Vendor at the expense of the latter.
2. The limitation period for claims for defects is 12 months from the moment of the passing of risks,
except if the right to recourse according to §479, part 1 BGB (Bürgerliches Gesetzbuch - German
Civil Code) makes a longer period of limitation obligatory.
3. The Buyer undertakes to examine the merchandise immediately after delivery. For obvious
defects the complaint has to be filed in writing at the latest within one week after reception of
the goods, hidden defects have to be reported in writing within one week after discovery (§377,
HGB - German Commercial Code).
4. Complaints are excluded after cutting or other forms of processing have commenced, unless the
defect became apparent only during processing.
5. If the subsequent performance according to Clause 1 above fails to remedy the defect, the Buyer
is entitled to withdraw from the contract or to demand reduction of the purchase price,
regardless of potential claims to damages. Withdrawal from the contract is excluded if the claim
concerns only slight variations in the agreed characteristics of the merchandise or a minor
restriction of the usefulness of the merchandise.
6. Slight, technically unavoidable variations in quality, color, width, weight, finish, or design as well
as commercially usual variations are not to be considered a defect.
7. Natural wear as well as damages resulting from improper handling of the merchandise are
excluded from the liability for defects.
8. The Buyer's right to recourse against the Vendor is only valid insofar as the Buyer and his
customer have not agreed warranty terms exceeding the statutory warranty claims.
§ 8 Claims to Compensation for Damages and Expenses
1. The Vendor is liable according to the statutory regulations if the Buyer claims compensation for
damages and expenses (hereinafter called "claims for damages") based on intention or gross
negligence on the part of the Vendor, including intention or gross negligence of the Vendor's
representatives or agents, if the Vendor is culpable of a breach of an essential contractual duty,
as well as in the event of loss of ife, physical injury or damage to health.
2. The liability of the Vendor is limited to the compensation of foreseeable and typical damages, and
the period of limitation stated in §7 Clause 2 applies, unless the liability arises from intention or
gross negligence or from loss of life, physical injury or damage to health.
3. Beyond that, the liability for compensation of damages is excluded, regardless of the legal nature
of the claims. Thus, in particular, the Vendor is not liable for damages on goods that are not part
of the contract. Furthermore, all claims for damages because of breach of duties arising from the
contractual obligation or tortful claims are excluded.
4. The obligatory provisions of the law on product liability remain unaffected.
5. These limitations and exclusions of the Vendor's liability for damages also apply to the personal
liability of his employees, representatives and agents.
§ 9 Place of Fulfillment, Forum and Venue, Applicable Law
1. The place of fulfillment of all performances is the principal seat of the Vendor.
2. Insofar as the Buyer is a merchant within the meaning of the German Commercial Code (HGB), a
legal entity under public law, or a special fund or trust under public law, the sole and exclusive
venue for any and all present or future claims arising from the business relationship is the court
of the district where the Vendor has his principal seat.
3. The entire contractual relationship between the Vendor and the Buyer is subject to the law of the
Federal Republic of Germany, to the exclusion of the law of conflicts, the unified un law of sales,
or other conventions regarding the law of product purchases.