of CONE PAL GmbH & Co. KG, 90431 Nuremberg, Germany
Status: January 2024

1. General provisions

1.1. The following terms apply to all transactions concluded with us and for the entire duration of the business relationship. They also apply if no separate reference is made to them in later transactions.

1.2. All agreements made between us and the customer are recorded in writing in these Delivery and Payment Terms and in our order confirmation.

1.3. Our Delivery and Payment Terms apply exclusively. Any deviating business terms or purchasing terms of the customer are hereby expressly rejected. Our Delivery and Payment Terms also apply if we carry out delivery to the customer without reservation while being aware of terms that conflict with or deviate from our terms.

1.4. Our offers are non-binding.

1.5. Our Delivery and Payment Terms apply only vis-a-vis entrepreneurs within the meaning of § 310 (1) BGB.

2. Prices

2.1. The prices stated in our order confirmation are decisive.

2.2. Our prices are net prices. Statutory VAT is not included and will be invoiced separately to the customer.

2.3. Our prices apply "ex works Nuremberg". The customer bears the costs of packaging, shipping and/or insurance, and these costs will be invoiced separately.

2.4. If, after conclusion of a contract and before its fulfilment, our procurement costs as well as taxes, customs duties, freight charges, fees or levies of any kind that affect the original price change, we are entitled to adjust the price payable by the customer accordingly. Any price increase is limited to the price enforced by us on the market.

3. Payment terms

3.1. Our receivables are due for payment net, i.e. without deduction, no later than 14 days from the invoice date. After expiry of this payment period, the customer is in default without the need for an additional reminder. If payment is made within 7 days, we grant a 2% cash discount. Freight, packaging, customs duties, fees or levies of any kind are not eligible for cash discount.

3.2. Payments by the customer always settle the oldest liabilities arising from the business relationship.

3.3. All payments must be made to us free of charges. The customer bears bill-of-exchange and cheque expenses as well as discount charges and other costs of collecting money.

3.4. In all other respects, the statutory provisions on default in payment apply.

3.5. In the event of payment difficulties on the part of the customer, in particular default in payment, cheque or bill-of-exchange proceedings, and also if, after conclusion of the contract, justified doubts arise as to the customer's solvency or creditworthiness, we are entitled to make further deliveries only against advance payment, to declare all outstanding invoice amounts - including deferred amounts - immediately due and payable, and to demand cash payment or security against return of bills of exchange accepted on account of payment. If we have exercised the aforementioned rights vis-a-vis the customer, we are not obliged to make further deliveries under any ongoing contract until the customer has fulfilled the corresponding payment obligations.

3.6. The customer is entitled to set-off only insofar as its counterclaims are undisputed, acknowledged by us or legally established. The same applies to retention on account of a monetary claim. In addition, the customer is entitled to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.

4. Delivery time, default

4.1. The delivery time results from our order confirmation.

4.2. If a binding delivery time has been agreed, it begins when the order confirmation is sent. The delivery deadline is met if the goods have left our works by expiry of the delivery time or if the customer has been notified by that time that the goods are ready for dispatch. Our obligation to comply with a delivery time always presupposes that the customer properly and punctually fulfils its contractual obligations, in particular its duties to cooperate. We reserve the defence of non-performance of contract.

4.3. The delivery time is extended in cases of force majeure and in the event of special circumstances that were not foreseeable when the contract was concluded and for which we are not responsible, in particular strike, lockout, shortage of personnel, shortage of means of transport, official orders, subsequently occurring difficulties in procuring materials and operational disruptions caused by water, fire or machine breakage, for the duration of the respective special circumstance. This also applies if such circumstances occur at our suppliers.

4.4. We are liable for default in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of § 286 (2) No. 4 BGB or § 376 HGB. We are also liable in accordance with the statutory provisions if, as a consequence of a delivery delay for which we are responsible, the customer is entitled to assert that its interest in further fulfilment of the contract has ceased to exist.

4.5. We are liable for delay in delivery in accordance with the statutory provisions if the delay is based on an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents is attributable to us. If the delivery delay is not based on an intentional breach of contract for which we are responsible, our liability for damages is limited to the foreseeable damage typical for this type of contract.

4.6. We are also liable for delay in delivery in accordance with the statutory provisions insofar as the delay for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, liability for damages is likewise limited to the foreseeable damage typical for this type of contract.

4.7. In all other respects, in the event of delay in delivery we are liable for each completed week of delay within the framework of liquidated damages for delay in the amount of 1% of the net value of the goods, but in total not more than 5% of the net value of the goods.

4.8. If the customer culpably breaches its duties to cooperate, we are entitled to demand compensation for the resulting damage, including any additional expenses. We reserve further claims.

5. Withdrawal in the event of default in acceptance, lump-sum damages

If the customer remains in default with acceptance of the goods for more than 10 days, then, if an additional period of 14 days set by us has expired without result, we are entitled to withdraw from the contract and to demand lump-sum damages in the amount of 20% of the total purchase price. In the case of call-off orders where the customer is in default with individual call-offs, the value of the individual call-off quantities replaces the total purchase price. In this case, the right of withdrawal is limited to the part of the call-off quantity with which the customer is in default.

The customer is, however, permitted to prove that we have suffered no damage or only damage in an amount substantially lower than the aforementioned lump sum.

6. Transfer of risk, dispatch

6.1. Delivery "ex works Nuremberg" is agreed. The risk of accidental loss and accidental deterioration of the goods passes to the customer upon handover, but no later than upon dispatch of the goods to the customer. This also applies if dispatch is carried out by our own personnel.

6.2. It is equivalent to handover of the goods if the customer is in default of acceptance. This applies accordingly if dispatch is delayed due to circumstances for which the customer is responsible.

6.3. We are entitled to determine the time of carriage as well as the transport route and mode of transport at our reasonable discretion.

7. Retention of title

7.1. The delivered goods remain our property until full payment of all existing and future claims to which we are entitled from the business relationship with the customer. The retention of title also extends to an acknowledged current-account balance.

7.2. The customer is entitled to resell the goods subject to retention of title in the ordinary course of business only in accordance with the following provisions: the buyer hereby assigns to us in advance its claims arising from a resale of the goods subject to retention of title, including all ancillary claims, in the amount of the final invoice amount owed to us, including VAT. We hereby accept the assignment. The assigned claims serve as security to the same extent as the goods subject to retention of title. The customer remains authorised to collect these claims even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and no suspension of payments exists. If this is the case, however, we may demand that the customer disclose to us the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.

7.3. We undertake to release the securities to which we are entitled insofar as their value exceeds the claims to be secured, to the extent these have not yet been settled, by more than 20%.

7.4. If (a) the customer is in default of payment, (b) an application is filed for the opening of composition or insolvency proceedings, (c) the customer's financial circumstances deteriorate so significantly that suspension of payments is to be feared, or (e) the customer otherwise acts in breach of contract, we are additionally entitled to take back the goods subject to retention of title. Taking back the goods by us constitutes withdrawal from the contract.

8. Rights and duties of the customer in the event of defects

8.1. The customer must properly inspect the delivered goods immediately after delivery. Any defects, quantity discrepancies or incorrect deliveries must be reported to us in writing without delay; obvious defects or defects discoverable upon proper inspection must be reported no later than within one week after delivery. The customer must give us the opportunity to jointly establish the reported defects. In the case of foreign deliveries, it is sufficient if the foreign customer makes the notifications prescribed under these terms and under the statutory provisions (§ 377 HGB) to our respective foreign representative. If the customer violates these provisions, the customer loses its rights in respect of defects.

8.2. If the goods are defective, we are entitled, at our option, to subsequent performance in the form of remedying the defect or delivering a new, defect-free item. If subsequent performance fails, the customer is entitled, at its option, to withdraw from the contract or reduce the purchase price.

8.3. The limitation period for defect claims is 12 months, calculated from the transfer of risk.

8.4. The statutory limitation period in the case of supplier recourse pursuant to §§ 478, 479 BGB remains unaffected; it is no more than five years, calculated from delivery of the defective goods.

9. Information on maximum pallet load capacity

We expressly point out that the approximate information on maximum pallet load capacity provided by us, in particular in our brochures and on our website, is non-binding, i.e. it is provided without assuming a legal obligation. Such information does not constitute quality characteristics within the meaning of § 434 (1) BGB nor a quality guarantee within the meaning of §§ 443 et seq. BGB. This information is based on laboratory tests carried out under optimum conditions with full-surface loading and with an evenly distributed, compact unit on the pallet support surface. Since each case of use of the pallets by the customer differs individually with regard to the type of load, for example surface, point or strip loading; the goods, for example differently compact, homogeneous or heterogeneous, wrapped, in cartons or in wooden crates; as well as storage and transport, we strongly advise our customers to test our pallets in advance for their suitability for the specifically intended use. We will gladly provide our customers with sample pallets free of charge for this purpose.

10. Liability of CONE PAL® Vertriebsgesellschaft mbH

10.1. We are 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. Unless we are accused of an intentional breach of contract, any liability for damages is limited to the foreseeable damage typical for this type of contract.

10.2. We are liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case too, however, liability for damages is limited to the foreseeable damage typical for this type of contract.

10.3. Liability for culpable injury to life, body or health remains unaffected by the limitations of liability in clauses 8 and 10 and is governed by the statutory provisions; this also applies to mandatory liability under the German Product Liability Act.

10.4. Any further liability of CONE PAL® Vertriebsgesellschaft mbH beyond the provisions in clauses 4.4 to 4.7, clauses 8.2 and 8.3, and clauses 10.1 to 10.3 is excluded, regardless of the legal nature of the claim asserted. This applies in particular to further claims for damages, for example arising from fault upon conclusion of the contract, other breaches of duty or tortious claims for compensation for property damage pursuant to § 823 BGB.

10.5. The limitation of liability pursuant to clause 10.4 also applies insofar as the customer demands reimbursement of futile expenses instead of a claim for compensation for damage in lieu of performance.

10.6. Insofar as liability for damages towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, staff members, representatives and vicarious agents.

11. Applicable law, place of performance and place of jurisdiction

11.1. The law of the Federal Republic of Germany applies exclusively. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

11.2. Unless otherwise stated in the order confirmation, the place of performance for all services of both contracting parties is our registered office in Nuremberg.

11.3. For all disputes arising from this contract, Nuremberg is the exclusive place of jurisdiction if the customer is a merchant. However, we are also entitled to sue the customer at the customer's place of business.

12. Severability

The partial or complete invalidity of individual provisions of these Delivery and Payment Terms does not result in the invalidity of the remaining provisions or partial provisions, nor of the contract as a whole. The statutory provision shall apply in place of the invalid provision or partial provision.

© CONE PAL GmbH & Co. KG