General Terms and Conditions
General Terms and Conditions of
Color Alliance GmbH for deliveries
Hereinafter referred to as Color Alliance
Status: February 2009
1. General, area of application
(1) The following general terms and conditions (hereinafter referred to as GTC) apply for all deliveries, services and quotations provided to clients by Color Alliance. Client within the meaning of a commercial business relationship.
(2) Alternative, contrary or supplementary general terms and conditions of the client are excluded, also without our express objection, unless we have given our express agreement to their applicability in written form. They will also not become an integral part of the contract if Color Alliance executes a delivery without reservation despite being aware of the client's conditions. This also applies to future deliveries made by Color Alliance to the client.
(3) If the client does not receive the GTC together with the respective quotation from Color Alliance or did not receive it on another occasion prior to or upon conclusion of the respective contract, it is still applicable if the client should have known or been aware of it due to a previous or other business relationship.
(4) Color Alliance is entitled to collect, save, process as well as use information and data concerning the client and - particularly for the purpose of asserting monetary claims or out-sourced accounts receivable management - to pass this on to third parties for saving, processing, and using.
2. Conclusion of the contract
(1) Quotations from Color Alliance are – particularly in respect of the price, quantity, lead time, availability, and additional services - subject to confirmation. We reserve the right to implement reasonable technical changes as well as reasonable changes in respect of form, colour and/or weight. An express assurance of characteristics is subject to confirmation by Color Alliance in written form.
(2) The scope of the performance that is to be provided by the Color Alliance shall be agreed fully by contract in writing.
(3) Upon ordering an article the client makes a binding declaration of its intent to purchase the ordered article. Color Alliance is entitled to accept the contractual offer contained in the order within two weeks of receiving it. Declaration of acceptance may either be in written form (also by invoice or delivery note) or through delivery of the goods to the client.
(4) If the client places the order electronically, Color Alliance will confirm receipt of the order immediately. However, this confirmation of receipt does not represent a binding acceptance of the order. The confirmation of receipt may be combined with the declaration of acceptance. Color Alliance saves the text of the contract if the order is placed electronically and upon request by the client will send this together with the present GTC by E-mail.
(5) Fixed dates and terms of delivery do not exist. In the event that a fixed delivery date is agreed upon and there is subsequently a delay in the delivery, the client shall be obliged to grant an appropriate extension of normally four weeks. Conclusion of the contract is subject to correct and timely delivery to Color Alliance by its upstream suppliers. This shall only apply if the failed delivery is not our responsibility, in particular, in the event that a congruent covering operation is concluded with the supplier of Color Alliance. Capacity-related bottlenecks may result in products offered by or ordered from Color Alliance not being available - possibly for a longer period - at the intended time of delivery. Therefore, quotations and order confirmations are subject to product availability. The client will be informed without delay in the event of long-term non-availability. Any counter-performance will be reimbursed.
3. Force majeure
If Color Alliance is affected by events of force majeure or other impediments for which Color Alliance cannot be held responsible, an appropriate extension will be applied to the delivery and performance times. If the delivery and/or acceptance is extended by more than eight weeks as a result of the disturbance, both parties are entitled to withdraw. In the event of a partial or complete discontinuation of operation by sources of supply, Color Alliance is not obligated to procure a replacement from a separate upstream supplier. In this case Color Alliance is, in consideration of internal requirements, entitled to distribute the available quantity of goods.
4. Shipping
Color Alliance reserves the right to choose the method and mode of shipping. Additional costs arising from special shipping requirements made by the client shall be paid by the client. The same applies with increases in freight costs, additional costs for re-routing, storage costs, etc. that arise after conclusion of the contract unless carriage paid delivery is agreed upon.
5. Retention of title
(1) Color Alliance retains title of the goods until full settlement of all claims resulting from an ongoing business relationship inclusive of ancillary claims, damage claims and cheque clearance times. The retention of title also remains effective if individual claims are added to a current invoice and the balance is established and acknowledged.
(2) The client is obliged to notify Color Alliance without delay of third party access to the goods, i.e. in cases of seizure, or if the goods are damaged or destroyed. Notification must be given by the client without delay in the event that it changes its address or if there is a change to the ownership of the goods.
(3) In the event of breach of contract by the client, particularly in respect of payment arrears or by infringing a duty specified under item 2 of this provision, Color Alliance may withdraw from the contract and demand the return of the goods.
However, enforcement of the right of retention of title alone does not represent a declaration to withdraw. A possible recovery of goods only occurs for reasons of security; it does not signify - also if instalment payments were subsequently granted - a withdrawal from the contract.
(4) The client is entitled to resell the goods in the course of orderly business. The client herewith assigns to Color Alliance all claims that accrue against third parties through resale of the goods to the value of the invoice amount. Color Alliance accepts this assignment. The client continues to be entitled to collect outstanding payments after the assignment. Color Alliance reserves the right to collect the outstanding payments should the client not properly fulfil his payment duties and fall into default with payment.
If realisation of claims appears to Color Alliance to be at risk, upon request by Color Alliance the client is obliged to notify its customers of the assignment and to place all information and documentation necessary for enforcing the rights of Color Alliance at its disposal.
(5) Machining and processing of the goods by the client occurs in the name and on behalf of Color Alliance. If a processing stage occurs with a non-Color Alliance article, Color Alliance acquires co-ownership of the new item in relation to the invoice value of the goods supplied by Color Alliance to the invoice value of the other processed articles.
The same applies if the goods are mixed with non-Color Alliance articles.
(6) If the value of the securities to which Color Alliance is entitled exceeds the respective claims against the client by 20% or more, upon demand by the client Color Alliance is obligated to release securities to the appropriate value. The selection of the securities to be released rests with Color Alliance.
6. Remuneration
(1) The quoted purchase price is net, ex works. Shipping costs are charged in accordance with actual expenditure. The client may settle the purchase price by cash on delivery or against an invoice.
(2) Payment must be made within 30 days of the invoice date with no deduction or within 8 days of the invoice date with 2% early settlement discount. After expiration of the 30 day term, the client shall be deemed to be in default with payment.
If a client is in default, interest on the monetary debt will be applied; this is set at 8% above the basic rate of interest. Color Alliance reserves the right to demonstrate higher default damages and claim these from the client.
(3) Cheques are accepted as conditional payment only, subject to return at any time and any liability in respect of orderly presentation or protest is excluded. Cheques are only be deemed to be payment after unreserved crediting by the bank of Color Alliance.
(4) The client may only offset undisputed claims or those that have been finally determined by court order and charge such claims against those of Color Alliance. The client shall have no rights to retention unless the underlying counterclaim is undisputed or finally determined by court order.
7. Passing of risk
(1) All agreements between Color Alliance and the client in respect of the quality of the goods to be supplied as well as all other statements by Color Alliance pertaining to the quality of these goods do not represent a guarantee in accordance with Sect. 433 of the Civil Code, unless Color Alliance has submitted to the client a separate confirmation in written form in which it gives its express agreement to extend such a guarantee. The same applies with regards to the assumption of any procurement risk by Color Alliance.
(2) All deliveries occur at the expense and risk of the client.
(3) Delivery is deemed to have occurred if the client is in default with acceptance.
8. Warranty
(1) The quality of the goods to be supplied by Color Alliance is specified either in the corresponding agreements between Color Alliance and the client or in Sect. 434 Par. 1 Item 2 of the Civil Code under exclusion of Sect. 434 Par. 1 Item 3 of the Civil Code. Samples of the goods to be supplied by Color Alliance only represent an approximate description of these goods.
(2) Color Alliance shall initially, at its discretion, rectify defects in the goods by remedial work or by making a replacement delivery.
(3) Should subsequent fulfilment fail, the client may, at its discretion, demand lower remuneration (reduction) or rescission of contract (withdrawal). The client has no right of withdrawal, however, if the infringement of contract is only minor, in particular concerning solely minor defects.
(4)The client must declare obvious defects stating the invoice number, product name, dimension, batch number, material quantity, and error description in written form to Color Alliance without delay and no later than one week from receipt of the goods; otherwise assertion of the warranty claim is excluded. Punctual dispatch suffices for observance of the deadline. The client is responsible for the full burden of proof for all of the prerequisites of a claim, in particular for the defect itself, for the point in time at which the defect was detected and for promptly submitting a complaint of the defect. Color Alliance reserves the right until completion of the complaint process to demand return of the goods from the client for the purpose of laboratory testing.
(5) If the client chooses to withdraw from the contract on account of a legal or material defect after subsequent fulfilment has failed, it has no claim to damages arising from the defect. If the client chooses restitution after subsequent fulfilment has failed, the goods shall remain with the client unless this is unreasonable.
The restitution is limited to the difference between the purchase price and the value of the defective goods. This does not apply if Color Alliance is culpable of maliciously concealing the infringement of contract.
(6) The warranty period is one year from delivery of the goods. The period of limitation for used goods is one year from delivery of the goods. This does not apply if the client has not informed Color Alliance promptly of a defect (item 4 of this provision).
(7) Agreement is made that the product description of the manufacturer specifies fundamentally the quality of the goods. Public statements, recommendations or advertisements of the manufacturer do not represent a contractually stated quality for the goods.
(8) The client receives no guarantees from Color Alliance in the legal sense. Manufacturer guarantees are not affected by this.
10. Limitation of liability
(1) In the case of infringements involving slight negligence, the liability held by Color Alliance is restricted to the direct, average damages typical of such contracts and foreseeable for the type of goods involved. This also applies to infringements involving slight negligence on the part of legal representatives or vicarious agents of Color Alliance. The client's claims to damages - including those of a non-contractual nature - for any slight negligent breach of duty by the legal representatives and other vicarious agents of Color Alliance are excluded, unless the breach concerns a duty that is crucial to the object of the contract.
(2) The preceding limitations do not apply to entitlements held by the client relating to product liability. Furthermore, the limitations do not apply in respect of non-attributable cases of bodily injury and health impairment or in the case of the loss of life of the client.
(3) Any claim held by the client resulting from a defect shall become time-barred one year after delivery of the goods. This does not apply if Color Alliance can be legitimately accused of fraudulent behaviour.
11. Final provisions
(1) The exclusive place of jurisdiction for all disputes is the business location of Color Alliance. The place of jurisdiction is also the business location of Color Alliance in respect of clients without a general place of jurisdiction in Germany or whose residence or usual place of abode is unknown at the time a law suit is filed by Color Alliance. Place of performance is Vlotho.
(2) The contractual relationship between both parties shall be governed solely by German law. Application of the UN Convention on the International Sale of Goods (CISG) dated 11.04.1980 is excluded.
The regulations of the UN Convention on the Assignment of Receivables in International Trade apply herewith suspensively conditionally from the moment of its effectiveness.
(3) If any of the provisions of the contract with the client are or become unenforceable in whole or part, including these general terms and conditions, the validity of the remaining provisions remain unaffected. The unenforceable provisions shall be replaced by other provisions, which come as close as possible to fulfilling the commercial purpose.
The same applies to filling gaps in the contract with the client or these general terms and conditions.
General Terms and Conditions of
Color Alliance GmbH for consultancy services
Hereinafter referred to as Color Alliance
Status: February 2009
1. General, area of application
(1) The following general terms and conditions (hereinafter referred to as GTC) apply for all consultancy services provided to clients by Color Alliance. Client within the meaning of a commercial business relationship.
(2) The scope of performance that is to be provided by the consultant is defined fully by the written contracts.
2. Conclusion of the contract
(1) The basis of every consultancy assignment is a consultancy contract in written form, to which this GTC is a fundamental part. All important key data pertaining to the order shall be specified in this contract; however, as a minimum requirement: type and scope of the contractual services to be rendered, particularly which additional services beyond the consultancy service are to be provided; remuneration; and in respect of fixed transactions, the respective completion dates.
(2) Consultancy services are provided purely on the basis of information provided by the client.
3. Remuneration
(1) All price quotations are net plus the statutory sales tax.
(2) Color Alliance reserves the right of retention of the documentation until such time as full settlement of all outstanding invoices has been made by the client.
(3) Color Alliance holds an entitlement to remuneration for all expenditure incurred pertaining to fulfilment of the order. Travel and the commissioning of assignments to sub-contractors must be agreed with the client in advance.
(4) Remuneration is due on completion of performance after presentation of invoice. In respect of stepped-performance, remuneration is due on completion of each step respectively and after presentation of invoice. Color Alliance is entitled to demand instalment payments according to the work involved. Expenses and other costs are due on presentation of invoice. Due invoices are payable without deduction.
(5) If a client is in default, interest on the monetary debt will be applied; this is set at 8% above the basic rate of interest. Color Alliance reserves the right to demonstrate higher default damages and claim these from the client.
(6) The client may only offset undisputed claims or those that have been finally determined by court order or charge such claims against those of Color Alliance. The client shall have no rights to retention unless the underlying counterclaims have been undisputed and finally determined by court order.
4. Contracted services
(1) Color Alliance shall be entitled to sub-contract any work necessary for the fulfilment of the task on behalf and for account of the client. In this respect the client is obligated to grant Color Alliance power of representation in written form.
(2) Insofar as individual contracts in respect of contracted services are concluded in the name and for account of Color Alliance, the client is obligated, in accordance with their internal relationship, to indemnify Color Alliance of all obligations and liabilities arising from the conclusion of such contracts; the particularly applies to payment for the contracted service.
5. Obligation to cooperate
(1) The client must ensure that Color Alliance has all relevant information necessary for the performance of the consultancy services or which Color Alliance considers necessary placed at its disposal.
(2) Color Alliance commits to treating all trade and industrial secrets of the client confidentially and to prevent third parties from gaining unauthorised access. This also applies to the trade and industrial secrets of other companies to which Color Alliance have become aware in the scope of its activities for the client.
(3) Insofar as Color Alliance has information or documentation placed at its disposal whilst executing the consultancy contract, Color Alliance will also treat this strictly confidentially and will only use it in the scope of fulfilling the required consultancy services. Such documentation will be immediately returned to the client upon completion of the consultancy services.
6. Liability
(1) Color Alliance shall assume unlimited liability for wilful and grossly negligent breaches of duty by its legal representatives and other vicarious agents.
(2) In respect of an ordinary negligent breach of fundamental contractual duties, Color Alliance is liable for predictable damages such as are typical of the contract. Color Alliance's liability does not extend to ordinary negligent breaches of other contractual duties.
(3) Complaints and objections, irrespective of their nature, must be enforced in written form to Color Alliance within two weeks of completion. After this period all work shall be deemed complete, accepted, and free of any deficiencies.
7. Warranty, remedial action
(1) Color Alliance performs all tasks with the greatest diligence and in compliance with professional principles as well as in compliance with generally acknowledged technical, commercial and ecological principles.
(2) All recommendations and forecasts are offered with the utmost of good faith. However, Color Alliance does not provide a warranty for such recommendations and forecasts.
(3) Color Alliance offers a warranty for the services insofar as it assumes liability for these in accordance with Sect. 5 of the GTC. The client holds an entitlement to having corrective work carried out if services provided by Color Alliance are found to be deficient. Initially the client may demand remedial work. If after repeated remedial work the deficiency is still evident, in respect of the deficient performance the client is entitled to withdraw from the contract or demand a reduction. Both parties are excluded from claiming compensation for costs incurred in the production of the regular performance.
8. Default of acceptance and lack of cooperation
If the client defaults in accepting the services offered by Color Alliance or if the client does not provide the assistance incumbent on him despite receiving a reminder and extended period of time from Color Alliance, Color Alliance is entitled to cancel the contract immediately. Color Alliance's right to compensation for additional expenses as well as for damages caused by the default remain unaffected. The same applies if Color Alliance does not assert its right to cancel.
9. Final provisions
(1) The exclusive place of jurisdiction for all disputes is the business location of Color Alliance. The place of jurisdiction is also the business location of Color Alliance in respect of clients without a general place of jurisdiction in Germany or whose residence or usual place of abode is unknown at the time a law suit is filed by Color Alliance. Place of performance is Vlotho.
(2) The contractual relationship between both parties shall be governed solely by German law. Application of the UN Convention on the International Sale of Goods (CISG) dated 11.04.1980 is excluded.
(3) If any of the provisions of the contract with the client are or become unenforceable in whole or part, including these general terms and conditions, the validity of the remaining provisions remain unaffected. The unenforceable provisions shall be replaced by other provisions, which come as close as possible to fulfilling the commercial purpose.
The same applies to filling gaps in the contract with the client or these general terms and conditions.