AGB

General terms and conditions

JW Sales GmbH (Brand Division Cosmedico)

1. General

a) The following terms and conditions of sale shall apply exclusively to our services and deliveries. We do not recognize any terms and conditions of the customer that are contrary to or deviate from our terms and conditions of sale, unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the Purchaser without reservation in the knowledge that the Purchaser’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
b) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
c) Our terms and conditions of sale shall only apply to entrepreneurs within the meaning of § 310 para. BGB.
d) Our Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser.
e) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are designated as “confidential”. The Purchaser shall require our express written consent before passing them on to third parties.

2. Order confirmation and withdrawal

a) We require complete technical and commercial clarification for incoming orders.
b) Until written order confirmation, all offers are subject to change. Upon receipt and acceptance of an order, production is initiated simultaneously for the purpose of the fastest possible delivery. This excludes any change or cancellation. Subsequent change requests are therefore only possible against reimbursement of the costs incurred up to that point.
c) The brochures, advertising material, catalogs, illustrations, price lists, etc. relating to our goods and services and the data contained therein are non-binding unless they are expressly designated by us as binding. Minor changes in design, form and execution due to technical progress do not entitle to complaints or withdrawal from the contract.
d) If the customer withdraws from the contract without any fault on our part, or if the customer otherwise withdraws from the contract, we shall be entitled to demand 40% of the contract value as compensation for lost profit and for costs incurred, unless the customer proves that no damage or significantly lower damage has been incurred. Our right to concretely calculate the damage incurred shall remain unaffected.

3. Pricing

a) Unless otherwise stated in the order confirmation, our prices are “ex works”. The prices are for uninterrupted processing within the production and closed delivery of the total order. Partitioning of orders initiated by the Purchaser shall cause additional costs which shall be charged to the Purchaser.
b) Unless fixed prices have been agreed, invoicing shall be at the prices applicable on the date of delivery. We reserve the right to change our prices appropriately if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective wage agreements or material price changes. We will provide evidence of these to the purchaser upon request.
c) The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
d) If a foreign buyer from the area of the European internal market does not fulfill his obligations to pay sales tax, our prices will be increased by the respective sales tax (VAT) valid in the Federal Republic of Germany.

4. Payment

a) Unless otherwise agreed, our invoices are payable net upon delivery of the goods.
b) The deduction of a cash discount requires a special written agreement.
c) Payments are only to be made directly to us. They shall first be set off against any costs and interest incurred and otherwise first against the oldest outstanding claims. Bills of exchange, checks and other means of payment shall only be accepted on account of payment. Discount and bill charges as well as other costs charged by our bank shall be borne by the customer.
d) In the event of payments by the Customer using the SEPA Direct Debit Scheme, the following shall apply: As a rule, we shall give advance notice of the upcoming direct debit collection together with the invoice (or by another communication channel agreed with the Customer) no later than five calendar days before the due date of the direct debit (advance information/”prenotification”). The customer is obliged to ensure that there are sufficient funds in the account designated in the SEPA mandate and to ensure that the amounts due can be collected by us.
e) Only persons with our written power of attorney for collection using our receipt forms are authorized to accept payments.
f) If the customer is in default of payment, we shall be entitled to demand interest on arrears in the amount of 9% above the respective base interest rate of the Deutsche Bundesbank p.a.. If we are able to prove a higher damage caused by delay, we are entitled to claim it.
g) In the event of default in payment by the customer, all our claims from all legal transactions shall become due immediately, even if we have accepted checks or bills of exchange. This shall also apply if the Purchaser is only in default with the payment of partial claims.
h) The customer shall only be entitled to set-off if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Otherwise, he shall not be entitled to refuse performance or to exercise a right of retention.

5. Packing/Delivery/Transfer of risk

a) The packaging is done according to professional and commercial aspects. Special packaging and replacement packaging, e.g. for repair items delivered unpacked, will be charged at cost price. Special packaging will be charged for certain items that are sensitive to shipping. Transport packaging and all other packaging in accordance with the packaging regulations will not be taken back by us.
b) If the customer expressly requests a special type of shipment, we shall charge the additional costs incurred.
c) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. Delivery shall be carriage forward unless otherwise agreed in writing.
d) The risk of accidental loss or accidental deterioration of the goods ordered from us shall pass to the customer upon loading of the goods, even if shipping costs are borne by us or the transport is carried out by one of our vehicles. The possible conclusion of a transport insurance is the responsibility of the purchaser.
e) Unloading of the goods is the responsibility of the customer. He shall carry out the unloading immediately after arrival. Excessively long unloading and waiting times result in additional costs which are to be reimbursed by the customer. If transport damages or transport losses appear, the customer has to record a protocol together with the driver. If the damage is considerable, the customer must notify us immediately and, if necessary, call in an average adjuster to assess the damage.
f) We may make and invoice partial deliveries.

6. Delivery times

a) Delivery periods, delivery dates and other deadlines are given by us to the best of our knowledge. They represent approximate data based on the usual production process. Force majeure, strikes, operational disruptions and similar incapacity on our part through no fault of our own or failure to obtain supplies ourselves in good time shall extend the delivery periods by the duration of the impediment.
b) The start of the delivery time stated by us presupposes the clarification of all technical questions.
c) Compliance with our delivery obligation further requires the timely and proper fulfillment of any existing obligations or duties of the customer. The defense of non-performance of the contract remains reserved. In particular, we shall be entitled to withhold deliveries without any obligation to compensate for any damage incurred if the customer is in default of payment for an earlier delivery.
d) If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
e) Provided that the conditions of par. (d) the risk of accidental loss or accidental deterioration of the object of sale shall pass to the Purchaser at the point in time at which the Purchaser is in default of acceptance or debtor’s delay.
f) If the customer wrongfully refuses acceptance in the event that we also install delivered goods or perform other work, the work shall be deemed accepted at the time of the unjustified refusal of acceptance.
g) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2). 2 No. 4 BGB or of § 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that his interest in the further performance of the contract has ceased to exist.
h) Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. Unless the delay in delivery is due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
i) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of an essential contractual obligation; “essential” is an obligation the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner may regularly rely. In the event of such breaches of duty, our liability for damages shall be limited to the foreseeable, typically occurring damage.
j) Otherwise, in the event of a delay in delivery, we shall be liable, at our discretion, for each full week of delay only within the scope of a lump-sum compensation for delay in the amount of 0.5% of the delivery value, but not more than 5% of the delivery value.

7. Reservation of ownership

a) All delivered items shall remain our property until full payment of all claims to which we are entitled from the business relationship with the customer; this shall also include conditional claims.
b) In the event of conduct in breach of contract on the part of the customer, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the object of sale by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realize it; the proceeds of realization shall be credited against the customer’s liabilities – less reasonable costs of realization.
c) The customer is authorized to resell our goods subject to retention of title in the regular course of business; however, he already now assigns to us all claims in the amount of the final invoice amount (incl. VAT) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether our goods subject to retention of title have been resold without or after processing. In the event that the Purchaser’s claims from the resale are included in a current account, the Purchaser hereby also assigns to us its claims from the current account against its customer. The assignment shall be made in the amount that we have charged him for the resold reserved goods.
d) The customer shall remain authorized to collect the assigned claims even after the assignment until revoked; our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the assigned claims insofar as the customer meets its payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments. If this is the case, however, the customer shall name the third-party debtors for the purpose of collection, notify them of the assignment, provide us with all further information, submit and send us documents and transfer bills of exchange. Furthermore, the customer is obliged to grant us access to the goods subject to retention of title still in his possession, to send us an exact list of the goods, to separate the goods and to hand them over to us.
e) The customer is not entitled to dispose of the reserved goods in any other way. He may therefore neither pledge, encumber nor assign them as security.
f) Any processing or transformation of the reserved goods shall always be carried out by the customer on our behalf. In the event of processing, combining or mixing the reserved goods with other goods not owned by us, we shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the reserved goods (final invoice amount, including VAT) to the other processed, combined or mixed items at the time of processing, combining or mixing. In all other respects, the same shall apply to the item created by processing, combining or mixing as to the purchased item delivered under reservation. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
g) If our goods subject to retention of title become an integral part of real property as a result of their combination, the customer shall assign to us by way of security the claims accruing against a third party as a result of the combination of the goods subject to retention of title with real property.
h) We undertake to release the securities to which we are entitled under the above provisions at the request of the Purchaser to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be ours.
i) The customer shall notify us immediately in writing of any seizure or other access by third parties to the goods subject to retention of title or to the claims assigned to us and shall assist us in any way in intervening. The costs for this shall be borne by the customer. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs, the customer shall be liable for the loss incurred by us.

8. Warranty and scope of liability

a) Warranty rights of the purchaser require that the purchaser has fulfilled his obligations according to §§ 3, 4 and 5 of the German Civil Code (HGB). §§ 377, 378 of the German Commercial Code (HGB) has duly complied with its obligations to examine the goods and to give notice of defects.
b) If there is a defect for which we are responsible, we shall be entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new item free of defects.
c) If the supplementary performance fails, the customer shall be entitled to demand rescission or a reduction in price at his discretion.
d) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
e) We shall also be liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation; “essential” is an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely. In the event of such breaches of duty, our liability for damages shall be limited to the foreseeable, typically occurring damage.
f) Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
g) Otherwise, liability is excluded, irrespective of the legal nature of the claim asserted. Therefore, claims for damages due to culpa in contrahendo, due to other breaches of duty, due to tortious claims for compensation of property damage according to § 823 BGB or claims of the purchaser for compensation of useless expenses according to § 823 BGB are excluded. § 284 BGB. We shall also not be liable for damage that has not occurred to the delivery item itself. Furthermore, we shall not be liable for damages which are exclusively attributable to a misconduct of the purchaser, such as improper assembly, incorrect operation and handling, natural wear and tear or neglected maintenance. With regard to the maintenance measures required at regular intervals for the items supplied by us, we refer to our relevant printed materials – technical documents, price lists, maintenance and care instructions – which are made available to each customer.
h) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
i) The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
j) The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated from the delivery of the defective item.
k) In the event of complaints that do not fall under our warranty obligation, any costs incurred by us shall be borne by the customer.
l) The customer is prohibited from assigning any claims against us to third parties.

9. Company logo / resale

a) We are entitled to affix our company logo to all our products.
b) Any processing and/or modification of our articles not agreed with us and/or any special stamping not permitted which is suitable to be regarded as the purchaser’s mark of origin or which gives the impression that these articles represent the purchaser’s special products shall be inadmissible.
c) When distributing the goods bearing our trademark, the Purchaser is obliged to refrain from any actions that may be considered unfair under the applicable laws and regulations.
d) The resale of the goods for direct or indirect shipment to countries outside the EU is not permitted unless we have given our prior written consent in the individual case.
e) We assume liability that the sold item as such is free from third party property rights in the federal territory. If third parties should assert justified claims based on property rights, we shall, at our discretion and at our expense, either obtain a license for the Purchaser or replace the sold item with an item that is free of property rights or take it back against return of the purchase price. Further claims against us are excluded.

10. Place of Performance – Jurisdiction – Miscellaneous

a) German law shall apply exclusively, even in the case of transactions involving foreign countries; the UN Convention on Contracts for the International Sale of Goods shall not apply.
b) If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be the court responsible for our place of business; however, we shall also be entitled to sue the customer at the court responsible for his place of residence.
c) Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
d) Should individual clauses of these terms and conditions be invalid, this shall not affect the validity of the remaining provisions.

www.cosmedico.de – Status: January 2011

JW Sales GmbH | Brand Division Cosmedico | Kölner Str. 8 | D-70376 Stuttgart

AGB

1. general

a) The following terms and conditions of sale shall apply exclusively to our services and deliveries. We do not recognize any terms and conditions of the customer that are contrary to or deviate from our terms and conditions of sale, unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the Purchaser without reservation in the knowledge that the Purchaser’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
b) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
c) Our terms and conditions of sale shall only apply to entrepreneurs within the meaning of § 310 para. BGB.
d) Our Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser.
e) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are designated as “confidential”. The Purchaser shall require our express written consent before passing them on to third parties.

2. Order confirmation and withdrawal

a) We require complete technical and commercial clarification for incoming orders.
b) Until written order confirmation, all offers are subject to change. Upon receipt and acceptance of an order, production is initiated simultaneously for the purpose of the fastest possible delivery. This excludes any change or cancellation. Subsequent change requests are therefore only possible against reimbursement of the costs incurred up to that point.
c) The brochures, advertising material, catalogs, illustrations, price lists, etc. relating to our goods and services and the data contained therein are non-binding unless they are expressly designated by us as binding. Minor changes in design, form and execution due to technical progress do not entitle to complaints or withdrawal from the contract.
d) If the customer withdraws from the contract without any fault on our part, or if the customer otherwise withdraws from the contract, we shall be entitled to demand 40% of the contract value as compensation for lost profit and for costs incurred, unless the customer proves that no damage or significantly lower damage has been incurred. Our right to concretely calculate the damage incurred shall remain unaffected.

3. Pricing

a) Unless otherwise stated in the order confirmation, our prices are “ex works”. The prices are for uninterrupted processing within the production and closed delivery of the total order. Partitioning of orders initiated by the Purchaser shall cause additional costs which shall be charged to the Purchaser.
b) Unless fixed prices have been agreed, invoicing shall be at the prices applicable on the date of delivery. We reserve the right to change our prices appropriately if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective wage agreements or material price changes. We will provide evidence of these to the purchaser upon request.
c) The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
d) If a foreign buyer from the area of the European internal market does not fulfill his obligations to pay sales tax, our prices will be increased by the respective sales tax (VAT) valid in the Federal Republic of Germany.

4. Payment

a) Unless otherwise agreed, our invoices are payable net upon delivery of the goods.
b) The deduction of a cash discount requires a special written agreement.
c) Payments are only to be made directly to us. They shall first be set off against any costs and interest incurred and otherwise first against the oldest outstanding claims. Bills of exchange, checks and other means of payment shall only be accepted on account of payment. Discount and bill charges as well as other costs charged by our bank shall be borne by the customer.
d) In the event of payments by the Customer using the SEPA Direct Debit Scheme, the following shall apply: As a rule, we shall give advance notice of the upcoming direct debit collection together with the invoice (or by another communication channel agreed with the Customer) no later than five calendar days before the due date of the direct debit (advance information/”prenotification”). The customer is obliged to ensure that there are sufficient funds in the account designated in the SEPA mandate and to ensure that the amounts due can be collected by us.
e) Only persons with our written power of attorney for collection using our receipt forms are authorized to accept payments.
f) If the customer is in default of payment, we shall be entitled to demand interest on arrears in the amount of 9% above the respective base interest rate of the Deutsche Bundesbank p.a.. If we are able to prove a higher damage caused by delay, we are entitled to claim it.
g) In the event of default in payment by the customer, all our claims from all legal transactions shall become due immediately, even if we have accepted checks or bills of exchange. This shall also apply if the Purchaser is only in default with the payment of partial claims.
h) The customer shall only be entitled to set-off if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Otherwise, he shall not be entitled to refuse performance or to exercise a right of retention.

5. Packing/Delivery/Transfer of risk

a) The packaging is done according to professional and commercial aspects. Special packaging and replacement packaging, e.g. for repair items delivered unpacked, will be charged at cost price. Special packaging will be charged for certain items that are sensitive to shipping. Transport packaging and all other packaging in accordance with the packaging regulations will not be taken back by us.
b) If the customer expressly requests a special type of shipment, we shall charge the additional costs incurred.
c) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. Delivery shall be carriage forward unless otherwise agreed in writing.
d) The risk of accidental loss or accidental deterioration of the goods ordered from us shall pass to the customer upon loading of the goods, even if shipping costs are borne by us or the transport is carried out by one of our vehicles. The possible conclusion of a transport insurance is the responsibility of the purchaser.
e) Unloading of the goods is the responsibility of the customer. He shall carry out the unloading immediately after arrival. Excessively long unloading and waiting times result in additional costs which are to be reimbursed by the customer. If transport damages or transport losses appear, the customer has to record a protocol together with the driver. If the damage is considerable, the customer must notify us immediately and, if necessary, call in an average adjuster to assess the damage.
f) We may make and invoice partial deliveries.

6. Delivery times

a) Delivery periods, delivery dates and other deadlines are given by us to the best of our knowledge. They represent approximate data based on the usual production process. Force majeure, strikes, operational disruptions and similar incapacity on our part through no fault of our own or failure to obtain supplies ourselves in good time shall extend the delivery periods by the duration of the impediment.
b) The start of the delivery time stated by us presupposes the clarification of all technical questions.
c) Compliance with our delivery obligation further requires the timely and proper fulfillment of any existing obligations or duties of the customer. The defense of non-performance of the contract remains reserved. In particular, we shall be entitled to withhold deliveries without any obligation to compensate for any damage incurred if the customer is in default of payment for an earlier delivery.
d) If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
e) Provided that the conditions of par. (d) the risk of accidental loss or accidental deterioration of the object of sale shall pass to the Purchaser at the point in time at which the Purchaser is in default of acceptance or debtor’s delay.
f) If the customer wrongfully refuses acceptance in the event that we also install delivered goods or perform other work, the work shall be deemed accepted at the time of the unjustified refusal of acceptance.
g) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2). 2 No. 4 BGB or of § 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that his interest in the further performance of the contract has ceased to exist.
h) Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. Unless the delay in delivery is due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
i) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of an essential contractual obligation; “essential” is an obligation the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner may regularly rely. In the event of such breaches of duty, our liability for damages shall be limited to the foreseeable, typically occurring damage.
j) Otherwise, in the event of a delay in delivery, we shall be liable, at our discretion, for each full week of delay only within the scope of a lump-sum compensation for delay in the amount of 0.5% of the delivery value, but not more than 5% of the delivery value.

7. Reservation of ownership

a) All delivered items shall remain our property until full payment of all claims to which we are entitled from the business relationship with the customer; this shall also include conditional claims.
b) In the event of conduct in breach of contract on the part of the customer, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the object of sale by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realize it; the proceeds of realization shall be credited against the customer’s liabilities – less reasonable costs of realization.
c) The customer is authorized to resell our goods subject to retention of title in the regular course of business; however, he already now assigns to us all claims in the amount of the final invoice amount (incl. VAT) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether our goods subject to retention of title have been resold without or after processing. In the event that the Purchaser’s claims from the resale are included in a current account, the Purchaser hereby also assigns to us its claims from the current account against its customer. The assignment shall be made in the amount that we have charged him for the resold reserved goods.
d) The customer shall remain authorized to collect the assigned claims even after the assignment until revoked; our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the assigned claims insofar as the customer meets its payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments. If this is the case, however, the customer shall name the third-party debtors for the purpose of collection, notify them of the assignment, provide us with all further information, submit and send us documents and transfer bills of exchange. Furthermore, the customer is obliged to grant us access to the goods subject to retention of title still in his possession, to send us an exact list of the goods, to separate the goods and to hand them over to us.
e) The customer is not entitled to dispose of the reserved goods in any other way. He may therefore neither pledge, encumber nor assign them as security.
f) Any processing or transformation of the reserved goods shall always be carried out by the customer on our behalf. In the event of processing, combining or mixing the reserved goods with other goods not owned by us, we shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the reserved goods (final invoice amount, including VAT) to the other processed, combined or mixed items at the time of processing, combining or mixing. In all other respects, the same shall apply to the item created by processing, combining or mixing as to the purchased item delivered under reservation. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
g) If our goods subject to retention of title become an integral part of real property as a result of their combination, the customer shall assign to us by way of security the claims accruing against a third party as a result of the combination of the goods subject to retention of title with real property.
h) We undertake to release the securities to which we are entitled under the above provisions at the request of the Purchaser to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be ours.
i) The customer shall notify us immediately in writing of any seizure or other access by third parties to the goods subject to retention of title or to the claims assigned to us and shall assist us in any way in intervening. The costs for this shall be borne by the customer. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs, the customer shall be liable for the loss incurred by us.

8. Warranty and scope of liability

a) Warranty rights of the purchaser require that the purchaser has fulfilled his obligations according to §§ 3, 4 and 5 of the German Civil Code (HGB). §§ 377, 378 of the German Commercial Code (HGB) has duly complied with its obligations to examine the goods and to give notice of defects.
b) If there is a defect for which we are responsible, we shall be entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new item free of defects.
c) If the supplementary performance fails, the customer shall be entitled to demand rescission or a reduction in price at his discretion.
d) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
e) We shall also be liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation; “essential” is an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely. In the event of such breaches of duty, our liability for damages shall be limited to the foreseeable, typically occurring damage.
f) Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
g) Otherwise, liability is excluded, irrespective of the legal nature of the claim asserted. Therefore, claims for damages due to culpa in contrahendo, due to other breaches of duty, due to tortious claims for compensation of property damage according to § 823 BGB or claims of the purchaser for compensation of useless expenses according to § 823 BGB are excluded. § 284 BGB. We shall also not be liable for damage that has not occurred to the delivery item itself. Furthermore, we shall not be liable for damages which are exclusively attributable to a misconduct of the purchaser, such as improper assembly, incorrect operation and handling, natural wear and tear or neglected maintenance. With regard to the maintenance measures required at regular intervals for the items supplied by us, we refer to our relevant printed materials – technical documents, price lists, maintenance and care instructions – which are made available to each customer.
h) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
i) The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
j) The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated from the delivery of the defective item.
k) In the event of complaints that do not fall under our warranty obligation, any costs incurred by us shall be borne by the customer.
l) The customer is prohibited from assigning any claims against us to third parties.

9. Company logo / resale

a) We are entitled to affix our company logo to all our products.
b) Any processing and/or modification of our articles not agreed with us and/or any special stamping not permitted which is suitable to be regarded as the purchaser’s mark of origin or which gives the impression that these articles represent the purchaser’s special products shall be inadmissible.
c) When distributing the goods bearing our trademark, the Purchaser is obliged to refrain from any actions that may be considered unfair under the applicable laws and regulations.
d) The resale of the goods for direct or indirect shipment to countries outside the EU is not permitted unless we have given our prior written consent in the individual case.
e) We assume liability that the sold item as such is free from third party property rights in the federal territory. If third parties should assert justified claims based on property rights, we shall, at our discretion and at our expense, either obtain a license for the Purchaser or replace the sold item with an item that is free of property rights or take it back against return of the purchase price. Further claims against us are excluded.

10. Place of Performance – Jurisdiction – Miscellaneous

a) German law shall apply exclusively, even in the case of transactions involving foreign countries; the UN Convention on Contracts for the International Sale of Goods shall not apply.
b) If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be the court responsible for our place of business; however, we shall also be entitled to sue the customer at the court responsible for his place of residence.
c) Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
d) Should individual clauses of these terms and conditions be invalid, this shall not affect the validity of the remaining provisions.

www.cosmedico.de – Status: January 2011

JW Sales GmbH | Brand Division Cosmedico | Kölner Str. 8 | D-70376 Stuttgart