Terms and conditions of delivery and payment
The English text of these Terms and Conditions of Delivery and Payment is a courtesy translation.
The German version of the "Liefer- und Zahlungsbedingungen der Cellofoam GmbH & Co. KG" is deemed the only legally binding text.
§ 1 General
1. These Terms and Conditions of Delivery and Payment apply to all contractual relationships with
entrepreneurs in the exercise of their commercial or independent professional activity, and with
legal entities under public law.
2. The contractual relationships between Cellofoam GmbH & Co. KG ("Vendor") and the customer
("Customer") are exclusively based on the present Terms and Conditions of Delivery and
Payment. Any terms and conditions of the Customer which are conflicting with, additional to or
deviating from these Terms and Conditions of Delivery and Payment are hereby rejected. Such
terms and conditions shall only apply if they have been expressly accepted in writing, in each
individual case, by the Vendor.
3. Any and all agreements made between the Vendor and the Customer for the purpose of
executing the Customer’s order shall be set out in writing in the corresponding contract.
§ 2 Conclusion of the Contract, Scope of the Contract
1. An order shall be deemed to have been accepted if the Vendor issues a written order
confirmation within two weeks of the order date.
2. All sales contracts are concluded only with regard to specific delivery dates, quantities,
articles and qualities. Both parties are bound to these stipulations.
3. Changes to these stipulations within the scope of the placed order shall only be permitted if
mutually agreed. Beyond and apart from such changes it shall not be possible to cancel an order.
4. The delivered goods comply only with the standards, guidelines and tests mentioned in the
material data sheets valid at the time of contract conclusion, or expressly agreed in writing with
the Customer, or specifications otherwise expressly agreed in writing. Insignificant, technically
unavoidable deviations in quality, color, width, weight, finish or design as well as any deviations
typical for the trade are possible. The Customer's expectations with regard to the contractual
products or their use shall not constitute an agreement on the properties of the goods unless
they have been expressly agreed as such in writing.
§ 3 Prices, Payment, Default of Payment
1. Unless otherwise stated in the order confirmation or otherwise agreed in writing, the Vendor's
prices are ex works including loading at the factory, but excluding freight, transport, special
packaging requested by the Customer, insurance, customs duties and the statutory value added
tax; these costs, customs duties and taxes shall be borne by the Customer.
2. The purchase price becomes due for payment at the moment that the goods are made available
for shipment, at the latest upon delivery. Any postponement of the due date is excluded.
3. Invoices are due strictly net within 30 days of the invoice date. Any deviating payment dates and
terms must be agreed in writing.
4. In case of international business transactions, payment shall be made prior to the delivery of
the goods resp. prior to the goods being made available for shipment, unless otherwise agreed
in writing in advance.
5. The payment date shall be deemed to be the day on which the invoiced amount is credited to the
6. Money orders, checks and bills of exchange shall only be accepted following explicit written
agreement and solely on account of performance. All collection and discount costs shall be at the
7. The Customer shall only be entitled to offset his own claims against the Vendor's claims if the
Customer's counterclaims are undisputed, finally adjudicated, or explicitly recognized by the
Vendor. The Customer can only assert a right of retention if his counterclaim is based on the
same contractual relationship as the Vendor’s claim.
8. The Vendor is not obliged to deliver any goods under this or any other contract as long as the
Customer has not properly fulfilled his payment obligations under this or any other contract.
Other rights of the Vendor to decline performance etc. shall remain unaffected.
9. After expiry of the payment period, the Customer shall be deemed in default of payment without
the need for a reminder.
10. If the Customer is in default of payment, the Vendor shall be entitled to demand interest on
arrears from the moment the Customer’s being in default, at a rate of 9 percentage points above
the respective base interest rate p.a. Further rights of the Vendor, in particular the right to claim
damages and the right to withdraw from the contract, shall remain unaffected.
11. If, after conclusion of the contract, the Vendor becomes aware of any facts which call the solvency
of the Customer into question, the Vendor shall be entitled to demand full payment or the
provision of securities before further execution of the order or, after the fruitless expiry of a
reasonable deadline set for full payment or security provision, to withdraw from the contract. The
Customer's solvency shall be assumed to be open to doubt if, among other things, long-term
seizures or other enforcement measures are taken against the Customer, or if insolvency
proceedings are opened against the Customer's assets, or if the opening of such proceedings is
rejected due to lack of assets. If, in the case of clause 1, delivery has already taken place, the
entire purchase price shall become due for payment immediately. Further claims of the Vendor
shall remain unaffected.
§ 4 Delivery, Delivery Period
1. The delivery of the goods is ex works, unless otherwise agreed in writing.
2. Partial delivery is permissible, unless partial delivery is not reasonably acceptable for the
Customer, due account taken of the Vendor’s best interests.
3. The delivery period is specified in the order confirmation.
4. An agreed delivery period (delivery deadline or delivery date) shall be deemed to have been met
if the goods have left the factory by the time this period expires, or if the Vendor has notified the
Customer that the goods are ready for collection or shipment. Compliance with the delivery
period is subject to the condition that the Vendor has received the relevant deliveries by his own
suppliers in due time, form and quality, unless the Supplier is responsible for the reason for
flawed or late delivery by his own suppliers. In the event of improper delivery by his suppliers, the
Vendor shall be entitled to withdraw from the contract. The Vendor shall inform the Customer
immediately if the Vendor exercises his right to withdraw from the contract and shall return any
advance payments made by the Customer.
5. If the Customer is in default of acceptance, the Vendor shall be entitled to demand compensation
for the loss caused thereby, unless the Customer is not responsible for the non-acceptance of the
goods. Furthermore, in the event of a default of acceptance by the Customer, the Vendor shall be
entitled to demand compensation for any additional expenses incurred.
6. Upon written request, the Vendor provides a certificate of compliance as to DIN EN 10204, free of
charge. The supply of other documents issued/performances provided at the request of the
Customer shall be charged on a time basis.
7. In the event of a delay in delivery, the Customer shall be entitled to withdraw from the contract
after the fruitless expiry of a reasonable grace period granted to the Vendor after the delay in
delivery has occurred, insofar as the Vendor is responsible for the delay in delivery. The Customer
shall be obliged, at the request of the Vendor, to declare within a reasonable period of time
whether he withdraws from the contract and/or demands damages instead of performance, or
insist on delivery.
§ 5 Passing of Risks
The risk of accidental loss and accidental deterioration passes to the Customer as soon as the
contractual goods are handed over to the person carrying out the transport or leave the Vendor’s
warehouse for the purpose of shipment. In case the products are collected by the Customer, the
risk shall pass to the Customer upon notification of readiness for collection. The above sentences
1 and 2 shall also apply if the delivery is made in parts or if the Vendor has taken over additional
performances, such as the transport costs.
§ 6 Retention of Title
1. The delivered goods remain the property of the Vendor until full settlement of the delivery price
as well as of all claims that the Vendor has against the Customer from the current business
relationship, including accessory claims and claims for damages.
2. The Customer stores the goods subject to retention of title free of charge for the Vendor and
treats them with due care. In particular he insures them adequately at replacement value against
typical risks such as fire, theft and water damage. The Customer hereby assigns any claims for
compensation to which he is entitled from damage of the above-mentioned kind against
insurance companies or other parties liable to pay compensation, in the amount of the invoice
value, to the Vendor, who accepts the assignment. In case such an assignment is not permitted by
law, the Customer hereby instructs the insurer to make any payments exclusively to the Vendor.
Further claims of the Vendor shall remain unaffected.
3. In the event of interventions by any creditors of the Customer, in particular in the event of seizure
of the goods subject to retention of title, the Customer shall notify the Vendor immediately in
writing and cooperate in the measures taken by the Vendor to protect the goods subject to
retention of title. To the extent that the third party is not able to reimburse the Vendor for the
judicial and extrajudicial costs incurred by the Vendor in enforcing the Vendor's property rights,
the Customer shall be obliged to compensate the Vendor for the resulting loss, unless the
Customer is not responsible for the circumstances which have led to the intervention by the third
party. Further claims of the Vendor shall remain unaffected.
4. The Customer is entitled to resell the delivered goods in the ordinary course of business provided
that he meets his payment obligations to the Vendor. If the Customer sells the delivered goods
despite retention of title, he hereby assigns in advance to the Vendor any and all of his claims that
arise from this sale against his buyer or a third party, including all accessory rights, irrespective of
whether the delivered goods have been resold after processing or in unprocessed condition. The
Vendor accepts the assignment. The assignment is limited to the amount of the invoice value of
the goods subject to retention of title. Until revocation by the Vendor, however, the Customer shall
be entitled and obliged to collect the claims in his own name. The Vendor shall be entitled to
demand that the Customer disclose the assignment to his buyer and provide the Vendor with all
information necessary to assert his rights against the third-party buyer and hand over the relevant
documents. The Customer hereby authorizes the Vendor to inform the Customer’s buyer(s) of the
assignment. Other than that, as long as the reservation of title persists, pledging, transfer of
ownership by way of security or other disposal or handover of the goods shall not be permitted
without the Vendor’s prior written consent.
5. The processing or transformation of the delivered goods by the Customer is always carried out on
behalf of the Vendor without giving rise to any obligations for the Vendor. If the delivered goods
are processed or transformed together with other goods not belonging to the Vendor, the Vendor
shall acquire co-ownership of the new object in the ratio of the value of the delivered goods
(invoice amount) to the other processed goods at the time of processing or transformation. In all
other respects, the object resulting from the processing or transformation shall be subject to the
same provisions as the goods delivered under reservation of title. The foregoing shall also apply if
the goods are combined or mixed with other items not belonging to the Vendor in such a way that
the Vendor loses his full ownership.
6. In the event of breaches of duty by the Customer, in particular his failure to meet his payment or
insurance obligations, the Vendor shall be entitled, without prejudice to his other rights, to
repossess the goods after the fruitless expiry of a reasonable period of grace set by the Vendor.
The repossession of the goods shall not require the Vendor to withdraw from the contract; nor
shall the repossession constitute a withdrawal by the Vendor from the contract unless the Vendor
expressly declares such withdrawal in writing. All costs arising from the repossession of the goods
shall be borne by the Customer, unless the Customer is not responsible for the breach of duty.
The Vendor shall be entitled, without prejudice to the Customer's obligation to pay damages, to
make the best possible use of the repossessed goods by selling them on the open market. The
proceeds after deduction of the costs shall be credited to the Customer's total debt. Any excess
proceeds shall be paid out to the Customer. Further claims of the Vendor shall remain unaffected.
7. The Vendor undertakes to release, at the request of the buyer, the securities to which he is
entitled insofar as their value exceeds the claims to be secured by more than 10%. The Vendor is
entitled to choose which securities are to be released.
8. As soon as the Customer has stopped his payments, and immediately after he has announced the
suspension of payments, the Customer shall be obliged to send the Vendor a list of the remaining
goods under retention of title, even if they have been processed or transformed, and a list of his
claims against the third-party debtors together with any credit notes.
9. In the case of delivery to places governed by legal systems in which this retention of title provision
does not have the same securing effect as in the Federal Republic of Germany, the Customer
hereby grants the Vendor a corresponding security interest. If further measures are required for
this purpose, the Customer shall do everything in his power to grant the Vendor such a security
interest without delay. The Customer shall cooperate in all measures that are necessary and
beneficial for the effectiveness and enforceability of such security interests.
§ 7 Defects in Material or Title (“Defects”)
1. The Customer's rights arising from product defects require that he has met his obligation to
inspect the goods on delivery, if reasonable also by trial processing or trial use, and has notified
the Vendor in writing of any obvious defects immediately, at the latest within 8 (eight) days of the
delivery of the goods. Hidden defects must be communicated to the Vendor in writing without
delay, at the latest within 8 (eight) days of their discovery. The Customer shall include a written
description of the defects when notifying the Vendor. Furthermore, during planning, construction,
assembly, connection, installation, commissioning, operation and maintenance of the goods, the
Customer must comply with the specifications, instructions, guidelines and conditions in the
technical notes, assembly instructions, operating and maintenance manuals and other documents
relating to the individual goods. In particular he has to ensure the performance and
documentation of the proper maintenance measures and the use of the recommended
components. Claims for any defects which result from of a breach of this obligation are excluded.
2. In the event of defects, the Customer shall be entitled to subsequent performance, i.e. the Vendor
shall, at his discretion, either remedy the defect or deliver replacement goods that are free of
defects. The expenses necessary for this performance, such as labor, material, transport and
travel costs, shall be borne by the Vendor. Replaced parts shall become the property of the Vendor
and are to be returned to the Vendor.
3. If the subsequent performance fails or if the Vendor is not prepared or willing to provide
subsequent performance, the Customer may, at his discretion and without prejudice to any
claims for damages or compensation for expenses, withdraw from the contract or reduce the
remuneration. However, withdrawal is excluded in particular in cases of insignificant deviations
from the agreed quality or of only minor impairment of the usability of the goods.
4. Liability for defects is excluded if such defects are attributable to natural wear and tear, to
improper handling, assembly, use or storage, or to improper modifications or repairs of the goods
carried out by the Customer or third parties. Likewise excluded from the liability for defects are
claims for defects after the Customer has started to cut or otherwise process the delivered goods,
unless the defect only becomes apparent during cutting or processing. § 7 para. 1 of these Terms
and Conditions of Delivery and Payment shall remain unaffected.
5. The Vendor does not give any guarantees, in particular no guarantees of quality or durability,
unless otherwise agreed in writing in individual cases.
6. The limitation period for claims for defects shall be 12 (twelve) months, unless the supply chain
ends in a consumer goods purchase (the end customer is a consumer). If the defective goods have
been used in a building in accordance with their normal use and have caused a defect in this
building, or if the defect claimed is a defect in a building, the limitation period shall be 5 (five)
years. The limitation period of 12 (twelve) months also applies to claims in tort arising from a
defect of the delivered goods. The limitation period begins with the delivery of the goods. The
limitation period of 1 (one) year does not apply to the unlimited liability of the Vendor for damages
resulting from the breach of a guarantee or from loss of life, physical injury or damage to health,
for intent and gross negligence and for product defects or insofar as the Vendor has assumed a
§ 8 Liability of the Vendor
1. The Vendor is liable without limitation for damages arising from a breach of guarantee or from
loss of life, physical injury or damage to health. The same applies to intent and gross negligence or
if the Vendor has assumed a procurement risk. The Vendor shall only be liable for slight
negligence if in breach of essential obligations that arise from the nature of the contract or are of
special importance for achieving the contractual purpose. In the event that such obligations have
been breached or in the case of delay or impossibility of performance, the Vendor's liability shall
be limited to damages that are typically to be expected within the scope of the contract. Any
applicable provisions of the law regarding statutory product liability shall remain unaffected.
2. As far as the liability of the Vendor is excluded or limited, this also applies to the personal liability
of his employees, representatives and agents.
§ 9 Force Majeure
1. If the Vendor is prevented by force majeure from fulfilling his contractual obligations, in particular
from delivering the goods, the Vendor shall be released from his obligation to perform for the
duration of the impediment plus a reasonable start-up time, without being obliged to pay
damages to the Customer. The same shall apply if the fulfilment of the Vendor’s obligations is
made unreasonably difficult or temporarily impossible by unforeseeable circumstances beyond
the Vendor’s responsibility, notably industrial disputes, measures taken by public authorities,
energy shortages, a sub-supplier’s incapability to deliver, or significant disruptions of operations.
This shall also apply if these circumstances occur at a sub-supplier. As far as the Vendor is
released from the obligation to deliver, the Vendor shall return any advance payments made by
2. The Vendor shall be entitled to withdraw from the contract after the expiry of a reasonable period
if such an impediment lasts for more than two months and the fulfilment of the contract is no
longer of interest to the Vendor as a result of the impediment. At the Customer’s request, the
Vendor shall declare after expiry of the said period whether he will exercise his right to withdraw
from the contract or deliver the goods within a reasonable period.
§ 10 Final Provisions
1. The place of performance for all performances is the Vendor’s place of business.
2. Insofar as the Customer is a merchant in the sense of the German Commercial Code (HGB), a legal
entity under public law or a special fund under public law, the exclusive place of jurisdiction for all
disputes arising from the business relationship is the Vendor's place of business.
3. The contractual relationship shall be governed by the law of the Federal Republic of Germany to
the exclusion of the United Nations’ Convention on Contracts for the International Sale of Goods