1 Scope of application
1.1 The following sales conditions are an essential contractual part of the contracts concluded between the Customer and VERMOP GmbH, branch Wertheim, Hafenstraße 16, 97877 Wertheim, Germany, hereinafter referred to as “VERMOP”, concerning the purchase of products of VERMOP as well as deliveries and other services.
1.2 These Terms and Conditions of Sale shall apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law within the meaning of § 310 (1) BGB.
1.3 Any terms and conditions of the Customer which conflict with, supplement or deviate from VERMOP´s Terms and Conditions of Sale are not applicable even if the Customer refers to them in its orders and VERMOP does not contradict.
2 Offer and conclusion of contract
2.1 Any information in brochures, catalogues, Internet or other advertising material is subject to change without notice, is non-binding, and merely constitutes an invitation to the Customer to submit an offer. Information in brochures, catalogues, on the Internet or other advertising material does not constitute a guarantee of quality and/or durability.
2.2 With the order, the Customer submits an offer to conclude a contract. The Customer is bound to this order for 14 calendar days, for orders via the Internet for 3 days, after dispatch. VERMOP may accept the offer within this period. The order confirmation by VERMOP to the Customer shall be deemed acceptance.
2.3 In the case of urgent/small orders for which delivery takes place within 8 days or order values of up to EUR 600.00, the invoice of VERMOP shall apply or, in cases where the invoice recipient differs from the Customer (e.g. in the case of orders from members of purchasing associations), the delivery to the Customer shall at the same time serve as order confirmation (enclosed carbon copy).
3 Documents provided, industrial property rights, tools
3.1 VERMOP reserves all property rights and copyrights to all documents handed over to the Customer in connection with the placing of the order, such as calculations, drawings, samples. These documents may only be used by the Customer in the agreed form. These documents may not be made accessible to third parties unless VERMOP gives its express written consent to the Customer to do so. If VERMOP does not accept the Customer’s offer within the period of 14 days, these documents must be returned to VERMOPE immediately.
3.2 If VERMOP supplies products in accordance with drawings, models and samples provided by the Customer, he shall be liable to VERMOP for ensuring that industrial property rights and other rights of third parties are not infringed by their manufacture and supply and shall compensate VERMOP for all damages resulting from such infringements.
3.3 Moulds, tools or other devices manufactured or provided by VERMOP shall remain the property of VERMOP, even if the Customer has assumed part or all of the costs thereof.
4 Prices and Payment
4.1 Unless otherwise agreed, the prices shall be in Euro Ex Works plus value added tax, transport, packaging and insurance costs and, in the case of export deliveries, plus customs duties and other public charges. Costs for transport, packaging, insurance, customs duties and other public charges shall be invoiced separately. The prices valid at the time of the order shall apply.
4.2 A mark-up for small volume purchases of EUR 30.00 shall apply for orders with a net goods value of up to EUR 250.00. Delivery within the Federal Republic of Germany shall be free of charge and without packaging costs from a net goods value of EUR 1,250.00.
4.3 Call-off deliveries are only possible after prior agreement – also with regard to costs.
4.4 Payment of the purchase price shall be made exclusively to the account specified in the invoice. Unless otherwise agreed, the purchase price shall be due by the date stated in the invoice. If the invoice does not specify a term of payment – unless otherwise agreed – the purchase price shall be payable within 14 days of the invoice date. Interest on arrears shall be charged at a rate of 9% p.a. above the respective base interest rate. The assertion of a higher damage caused by default remains reserved.
4.5 Bills of exchange and cheques will only be accepted after prior agreement.
4.6 VERMOP reserves the right to reasonable price changes due to changed wage, material and distribution costs for deliveries made after 4 months after conclusion of the contract.
5 Rights of retention, offsetting
5.1 The Customer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5.2 The Customer shall only be entitled to set-off, if his claims have been legally established or are undisputed.
6 Delivery time
6.1 Delivery dates or delivery periods are explicitly non-binding information.
6.2 The start of the delivery period stated by VERMOP presupposes the timely and proper fulfilment of the obligations of the Customer. The defence of non-performance of the contract by the Customer remains reserved.
6.3 If the Customer is in default of acceptance or culpably violates other obligations to cooperate, VERMOP shall be entitled to demand compensation for the damage incurred in this respect, including any additional expenses. VERMOP reserves the right to assert further claims. Insofar as the above conditions exist, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the Customer at the point in time at which he is in default of acceptance or debtor’s delay.
6.4 Force majeure and circumstances beyond control of VERMOP, such as strikes, lockouts, operational disruptions, shortage of raw materials and operating resources, delayed delivery by upstream suppliers, delays in delivery by a forwarding agent or additional or changed services requested by the Customer shall extend the delivery times accordingly and release VERMOP from the obligation to deliver in the event of the resulting impossibility.
6.5 If VERMOP is in default with a delivery or if a delivery becomes impossible for any reason whatsoever, liability shall be limited to damages in accordance with section 12 of these General Terms and Conditions of Sale.
7 Custom-made products and individual products
7.1 The Customer has the possibility to acquire custom-made products with regard to the product assortment or individual products with regard to the cleaning trolleys, textiles and cleaning agents. Custom-made products are special requests of the Customer which deviate from the products in the VERMOP catalogue and require a new production. In the segments cleaning trolleys, textiles and cleaning agents, individual products are characteristics of the entire standardized product range which are shown in the catalogue, and which have been modified by VERMOP in accordance with the Customer’s wishes.
7.2 Individual products require a minimum purchase quantity of 1000 litres per product and per container in the field of cleaning chemicals and 500 pieces in the field of textiles (wiping covers).
7.3 Custom-made products in the area of cleaning chemicals require a minimum purchase quantity of 3 tons whereat several containers (with each of at least 1000 litres as minimum purchase quantity) are possible.
7.4 For custom-made products VERMOP reserves the right to charge EUR 500.00 net in advance for feasibility studies, which will be credited again when the order is subsequently placed.
7.5 For custom-made products as well as individual products, the prices offered are indispensably coherent with the quantity indicated in the offer. By placing an order, the Customer undertakes to accept the quantity stated in the offer.
7.6 Agreed quantities for individual products of VERMOP´s textiles (mop covers) and cleaning agents allow excess or short deliveries of +/- 10 %. In the case of call-off orders, the total quantity must be accepted within six (6) months.
7.7 If custom-made products and/or individual products include the production of labels, printing plates (especially in the textile range) and/or covers for cleaning trolleys, the offer prices of VERMOP shall include the design and production of labels, printing plates and/or covers for cleaning trolleys as well as 2 correction runs for the final coordination of the designs for labels, printing plates and/or covers for a cleaning trolley. Any additional expenses incurred will be charged separately at an hourly rate of € 80.00 (net). Within the scope of Customer-specific label production, VERMOP undertakes to provide the minimum information required under the Product Liability Act. The Customer shall design the label texts and release the label for printing.
7.8 Custom-made products and individual products are excluded from return. This does not apply in cases of warranty.
7.9 Custom-made products are not produced exclusively for the Customer, but VERMOP reserves the right to make them available to other customers.
8 Transfer of risk
8.1 The risk shall pass to the Customer at the latest when the goods are handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party appointed to carry out the shipment. This shall also apply, if partial deliveries are made or if VERMOP has assumed further services, e.g. installations. If dispatch or handover is delayed as a result of circumstances for which the Customer is responsible, the risk shall pass to the Customer from the day on which the goods are ready for dispatch and VERMOP has notified the Customer accordingly.
8.2 Storage costs after transfer of risk shall be borne by the Customer. In case of storage by VERMOP, the storage costs shall amount to 0.25% of the invoice amount of the delivery stocks to be stored per expired week. The right to assert and prove further or lower storage costs is not infringed.
8.3 Mode of dispatch and packaging are subject to the dutiful discretion of VERMOP.
9 Retention of title
9.1 VERMOP reserves the right of ownership of the delivered goods until all claims arising from the delivery relationship have been paid in full. This also applies to all future deliveries, even if VERMOP does not always expressly refer to this. VERMOP shall be entitled to take back the object of sale if the Customer acts in breach of contract.
9.2 The Customer is obliged to treat the object of sale with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure the goods at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work have to be carried out, the Customer must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the Customer must inform VERMOP immediately in writing if the delivered item is seized or subjected to other interventions by third parties. Insofar as the third party is not in a position to reimburse VERMOP for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO (Code of German Civil Procedure), the Customer shall be liable for the loss incurred.
9.3 The Customer is entitled to resell the reserved goods in the normal course of business. The Customer hereby assigns to VERMOP the claims against the buyers arising from the resale of the reserved goods. This assignment shall apply regardless of whether the object of sale has been resold without or after processing. The Customer remains revocably authorised to collect the claim even after the assignment. The authority of VERMOP to collect the claim itself shall remain unaffected thereby. However, VERMOP shall not collect the claim as long as the Customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed for insolvency or suspended payments.
9.4 The treatment and processing or transformation of the object of sale by the Customer shall always be carried out in the name and on behalf of VERMOP. In this case, the Customer’s expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to VERMOP, VERMOP shall acquire co-ownership of the new object in the ratio of the objective value of the object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing is carried out in such a way that the Customer’s item is to be regarded as the main item, it shall be deemed agreed that the Customer transfers co-ownership to VERMOP on a pro rata basis and stores the resulting sole ownership or co-ownership for VERMOP. In order to secure the claims of VERMOP against the Customer, the Customer also assigns to VERMOP such claims which accrue to him against a third party through the combination of the reserved goods with a piece of land; VERMOP hereby accept this assignment.
9.5 VERMOP undertakes to release the securities to which VERMOP is entitled at the request of the Customer if their value exceeds the claims to be secured by more than 20 %.
10 Warranty, notice of defects, recourse/manufacturer’s recourse, spare parts
10.1 The warranty is based on the statutory provisions of the law on sales.
10.2 If the Customer requires the goods for special purposes, he must check their special suitability – also with regard to product safety – beforehand, in particular whether they comply with all relevant technical or official regulations. Claims for compensation resulting from the unsuitability are excluded without prior examination. VERMOP is not liable for the suitability or permissibility of the desired materials or constructions in the case of material or construction regulations of the Customer and has no special duty to inspect in this respect.
10.3 Warranty rights of the Customer require that he has properly fulfilled his obligations to inspect and give notice of defects according to § 377 HGB (German Commercial Code).
10.4 Claims for defects shall become statute-barred 12 months after delivery of the goods delivered by VERMOP to the direct Customer of VERMOP. This period does not apply to claims for damages by the Customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty of VERMOP or its vicarious agents, which in each case become statute-barred in accordance with the statutory provisions. The regulations for the recourse of the entrepreneur according to § 478 BGB remain unaffected. The consent of VERMOP shall be obtained before any goods are returned.
10.5 If, despite all due care taken, the delivered goods exhibit a defect which existed at the time of transfer of risk, VERMP will, at its discretion and subject to timely notification of the defect, either repair the goods or deliver replacement goods. VERMOP shall always be given the opportunity to remedy the defect within a reasonable period of time. Recourse claims remain unaffected by the above regulation without restriction.
10.6 If the supplementary performance fails, the Customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
10.7 There shall be no claims based on defects in the case of natural wear and tear, as in the case of damage occurring after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable operating resources or due to special external influences not assumed under the contract. If improper repair work or modifications are carried out by the Customer or third parties, no claims based on defects shall exist either for these and the consequences arising therefrom.
10.8 Recourse claims of the Customer against VERMOP shall only exist insofar as the Customer has not made any agreements with his Customer which go beyond the contract with VERMOP or the legally mandatory claims based on defects. Furthermore, paragraph 7 shall apply mutatis mutandis to the scope of the Customer’s right of recourse against VERMOP.
10.9 In the event of rectification, the warranty shall only recommence with respect to the rectified part; otherwise, the original warranty period shall apply.
10.10 Warranty claims for accumulators and batteries require that a defect exists at the time of delivery. Reference is made to paragraph 3. Later defects are due to use and are not subject to warranty.
10.11 The spare parts of VERMOP are to be used exclusively for the products sold by VERMOP.
10.12 The purchase of products of VERMOP does not include their disposal, unless there is a legal obligation for VERMOP (e.g. German Electrical Law).
11 EXPORT RESTRICTIONS
11.1 The contractual products and technical know-how may contain technologies and software which are subject to the regulations of the Foreign Trade and Payments Act of the Federal Republic of Germany applicable to them, supplementary EU regulations with binding effect as well as the export control regulations of the United States of America or any import regulations of the countries to which the contractual products are delivered or in which they are used.
11.2 The Customer undertakes to inform himself on his own responsibility about the current regulations and ordinances and to observe them. Without prior official approval, the Customer is not permitted to deliver the contractual products directly or indirectly to countries that are subject to an EU embargo or US embargo or to natural persons or legal entities that are on the “banned lists” of the United States of America, Europe or Germany (e.g. Entity List, Denied Persons List or Specifically Designated Nationals and Blocked Persons).
12.1 Without prejudice to the following limitations of liability, VERMOP will be liable in accordance with the statutory provisions for damages to life, body and health resulting from a negligent or intentional breach of duty by VERMOP and for damages covered by liability under the German Product Liability Act and for all damages resulting from intentional or grossly negligent breaches of contract and fraudulent intent on the part of the legal representatives or vicarious agents.
12.2 Insofar as VERMOP has given a quality and/or durability guarantee for the goods or parts thereof, VERMOP will also be liable within the scope of this guarantee. However, VERMOP shall only be liable for damage based on the absence of the guaranteed quality or durability, but which does not occur directly on the goods, if the risk of such damage is clearly covered by the quality and durability guarantee. A guarantee of quality and/or durability shall only exist if VERMOP has expressly designated it in writing as a “guarantee of quality and/or durability” (with this wording) and with reference to this paragraph.
12.3 VERMOP will also be liable for damages caused by simple negligence, insofar as this negligence concerns the breach of such contractual obligations, the observance of which is of particular importance for achieving the purpose of the contract (cardinal obligations). A cardinal obligation is an obligation the fulfilment of which is decisive for the successful implementation of the contract. However, VERMOP’s liability towards the Customer in the event of a slightly negligent breach of a material contractual obligation shall be limited to the typical damage foreseeable at the time of the conclusion of the contract.
VERMOP shall not be liable for simple negligent breaches of secondary obligations not essential to the contract.
12.4 If the Customer has contributed to the occurrence of the damage through culpable conduct, the extent of the damages to be paid by VERMOP shall be determined according to the principles of contributory negligence.
12.5 VERMOP will be liable for the fault of vicarious agents in accordance with the statutory provisions. In these cases, liability is limited to the careful selection and instruction of the first intermediary (forwarded order).
12.6 VERMOP will not be liable in the case of slight negligence for loss of profit, indirect damages or other forms of consequential damages.
12.7 Insofar as the liability is excluded or limited, this also applies to the personal liability of the employees, workers, staff, legal representatives and vicarious agents of VERMOP.
13 FORCE MAJEURE
VERMOP is not liable if the circumstances on which a claim is based
- on an unusual and unforeseeable event over which VERMOP has no control and the consequences of which could not have been avoided despite the exercise of due care, such as war and natural events (storms, thunderstorms, floods etc.), epidemics, pandemics and their international and national effects, strikes, lock-outs, traffic disruptions, orders from authorities at home and abroad or
- were brought about by VERMOP based on a legal obligation.
14.1 The parties undertake to treat all Confidential Information of which they become aware in connection with the preparation and performance of the contract, as confidential during as well as after the termination of the business relationship, not to disclose it to third parties and to use it only for the purpose of performing the contract.
14.2 “Confidential Information” means, in particular, any offer, contract document (including drafts), documentation, report, technical or business information, software, data, sketches, plans, descriptions, specifications, measurement results, calculations, samples, findings or processes as well as trade and business secrets as set out in the German Law to Protect Trade and Business Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen – “GeschGehG”) communicated by one party to the other in writing, orally or otherwise and identified as “confidential”, or where the confidentiality results from the circumstances. The parties are aware that these trade and business secrets have an essential commercial value for the disclosing party, are protected by suitable secrecy measures on the part of the disclosing party and were previously neither known in detail, not in their entirety nor have they been readily accessible and for their secrecy is a legitimate interest.
14.3 Third parties in this sense are not the affiliated companies within the meaning of §§ 15 ff of the German Stock Corporation Act (AktG) of the respective contracting party.
Exclusively for the performance of the contract, the disclosure of confidential information to subcontractors is permissible without express consent, provided that the disclosure is necessary for the performance of the service and the subcontractor is obliged to maintain confidentiality.
14.4 The duty of confidentiality shall continue for a period of five (5) years beyond the termination of the performance of the contract.
14.5 The duty of confidentiality shall not apply to Confidential Information which has been
- known or has been generally available to the public prior to its disclosure or transfer by VERMOP or becomes so at a later date without breach of a duty of confidentiality;
- demonstrably known to the Customer before disclosure by VERMOP and without breach of a duty of confidentiality;
- independently obtained by the Customer without use of or reference to Confidential Information of VERMOP; or
- handed over or made accessible to the Customer by an authorised third party without a breach of a confidentiality obligation.
The Customer may only invoke the aforementioned exceptions if he notifies VERMOP thereof in writing or in text form immediately after disclosure of the Confidential Information.
15 Data protection
16 CHOICE OF LAW, PLACE OF JURISDICTION, PLACE OF PERFORMANCE, Miscellaneous
16.1 These General Terms and Conditions of Sale, the contract and all legal relations between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the provisions of international private law which refer to another jurisdiction and the UN Convention on Contracts for the International Sale of Goods (CISG). German law shall also apply to non-contractual claims in connection with the contractual relationship between the parties. Mandatory provisions for conflict of laws shall remain unaffected. Exclusive place of jurisdiction for all disputes arising from this contract is Munich.
16.2 Place of performance is the branch office in D-97877 Wertheim, unless otherwise stated in the order confirmation.
16.3 Amendments or supplements to these General Terms and Conditions of Sale shall be made in writing to be effective. This also applies to a waiver of this written form requirement.
16.4 Should any provision of these General Terms and Conditions of Sale be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
16.5 This is the English translation of VERMOP´s German General Terms and Conditions of Sale. Should there be any discrepancies between the German and English versions, the German version shall prevail.