§ 1 Scope of application, definitions

• The following General Terms and Conditions (hereinafter: “GTC“) apply to all deliveries of goods to partners (hereinafter: “Purchaser“) of Bergerat SA, Churer Strasse 47, 8808 Pfäffikon SZ (hereinafter: “Bergerat“). The Purchaser accepts these GTC when placing an order.
• Unless otherwise agreed, the GTC in the version valid at the time of the order, or in any case in the version last communicated to the Purchaser in text form, shall also apply as a framework agreement for similar future contracts, without BERGERAT being obliged to refer to them in each individual case.
• The deliveries, services and offers of BERGERAT are exclusively based on these GTC. Deviating, conflicting or supplementary general terms and conditions of the Purchaser shall only become part of the contract if and insofar as BERGERAT has expressly agreed to their validity. This consent requirement shall apply in any case, for example even if BERGERAT carries out the delivery to the Purchaser without reservation in the knowledge of the Purchaser’s GTC.
• Individual agreements made with the Purchaser in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over BERGERAT’ GTC.

§ 2 Conclusion of contract and prices

• The offers of BERGERAT are subject to change and non-binding. This also applies if catalogues or other documents – also in electronic form – are provided to the Purchaser, to which BERGERAT reserves the ownership and copyright in each case.
• The order of the goods by the Purchaser is considered a binding offer of contract. The contract is concluded with the express acceptance of the order by BERGERAT or with the delivery of the ordered goods. Unless otherwise agreed, the purchase prices valid on the day of invoicing shall be charged. All price quotations are exclusive of the statutory value added tax.
• From an order amount (EP prices) of more than CHF 200, Bergerat does not charge any handling fees. The minimum order amount of CHF 200 must be reached for this. We charge a small order fee of CHF 15 for orders under CHF 200.

§ 3 Delivery/Force Majeure

The ordered goods shall be delivered carriage paid. BERGERAT is entitled to make partial deliveries insofar as this is reasonable for the Purchaser. BERGERAT is only obliged to deliver from its own stock of goods. Should BERGERAT not be able to deliver for longer than 4 weeks due to unforeseeable events and occurring obstacles, for which BERGERAT is not responsible (in particular war, operational disturbances, strike, disturbance of traffic routes, cyber attacks on the IT system, epidemics and pandemics), the Purchaser can demand a declaration as to whether BERGERAT wants to withdraw or deliver within a reasonable period of time. If BERGERAT does not make a declaration without delay, the Purchaser may withdraw from the affected order. If no delivery is made after the deadline, both parties may also withdraw from the order. This also applies if these circumstances occur at the suppliers of BERGERAT and their sub-suppliers. BERGERAT shall inform the Purchaser immediately of the beginning and end of such obstacles. Claims for damages are excluded in this case.

§ 4 Transfer of risk

• The risk of accidental loss or accidental deterioration shall pass to the Purchaser upon handover. Default of acceptance on the part of the Purchaser shall result in the transfer of risk.
• Returns must be registered and approved by the Purchaser with BERGERAT. BERGERAT will collect the return from the Purchaser. The return is also carriage paid.

§ 5 Payment modalities; default in payment

• Invoices are due without deduction within 30 days of the invoice date and are payable to the account designated in the invoice. BERGERAT grants a 2% discount for payment within 10 days of the invoice date and a 3% discount for participation in the direct debit procedure.
• BERGERAT reserves the right to send invoices electronically.
• After expiry of the 30 days, the Purchaser shall be in default without reminder. In the event of default in payment, all invoices outstanding at the time of default shall become due and payable immediately. In the event of default in payment, further deliveries shall be dependent on the prior settlement of the due claims. The same shall apply in the event of justified doubts about the solvency of the Purchaser.
• In the event of default in payment, BERGERAT is entitled to charge default interest in the amount of 9 percentage points above the base interest rate. In case of delayed payment, BERGERAT is entitled to charge Euro 5 for the first, Euro 10 for the second and Euro 15 for the third reminder. The assertion of further damage caused by default (e.g. interest on arrears) remains unaffected by this.
• In the case of SEPA direct debit, the period for pre-notification shall be reduced to one day. The Purchaser guarantees to ensure that the account is covered. Costs incurred due to non-payment or reversal of the direct debit shall be borne by the Purchaser, as long as the non-payment or reversal was not caused by BERGERAT.

§ 6 Obligations of the Purchaser

The high-quality perfumery goods (hereinafter: “products“) of various brands distributed by BERGERAT are sold or otherwise supplied exclusively to qualified Purchasers under the following conditions:

6.1 The products may only be sold to the end consumer from the sales outlet supplied by the Purchaser, in quantities customary in the household. In the case of Internet trade, the website must be designed as a “virtual shop counter”.

6.2 BERGERAT may discontinue the sale of individual products at any time.

6.3 The Purchaser and its leading sales personnel must have qualified professional training in the field of perfume and cosmetic products.

6.4 The equipment and furnishings of the sales outlet, the range of goods, the advertising and the sales presentation must correspond to the high-quality luxury image of the brands. The Purchaser is prepared to ensure that the products are constantly presented in a prominent manner, will pay attention to the product and brand environment and will only position the products alongside other luxury goods of equal value.

6.5 The following applies to internet sales: Both in the internet domain and on the homepage of the internet site, the core of the designation of the physical sales business must be emphasised. Internet-typical additions are permissible as long as the impression of a purely online retailer is not conveyed and as long as the additions do not lead to trademark damage, such as the use of the word “discount” or “crossed-out prices”. The impression of a limited choice of goods, equipment or advice must be avoided. Sales may not be made under a third party label. Third-party sales and auction platforms operating in the course of trade under their own trademark shall only be used for advertising and not for sales purposes. Furthermore, only industry-specific sales and promotion platforms that correspond to the sales channel of the Purchaser shall be considered as advertising media.

6.6 The products shall not be sold or otherwise transferred to commercial resellers. Authorised Purchasers who belong to the BERGERAT selective distribution system are excluded. Passive distribution to end consumers and resellers in the other EEA states is permitted. The products may not be supplied to third parties outside the European Economic Area (EU plus Iceland, Norway and Liechtenstein, but excluding Switzerland), regardless of whether the recipients are resellers or end consumers.

6.7 The provisions of Section 6 (1) nos. 6.1-6.4 shall apply mutatis mutandis to an additional authorisation for internet distribution. With regard to dispatch to addressees outside the selective distribution area in Germany but within the EEA, supply is only permitted within the scope of active demand.

6.8 In order to ensure the strict selectivity and exclusivity of the contractual products and to avoid an otherwise threatening Internet auction trade in contractual products, the Purchaser is prohibited from selling products to personnel in excess of customary commercial quantities.

6.9 The Purchaser is obliged to refrain from marketing or advertising that may affect the prestigious character of the products. This applies in particular to the following forms of advertising:

6.10 Advertising for price reductions in percentages or by indicating previous prices or prices which have been crossed out; advertising for low prices with the word “discount” or “rebate”; image-damaging tying-in offers with goods or services of a different kind; across-the-board price reductions covering the entire range of a product group, provided that this is not based on a business anniversary; and a special highlighting of price reductions of the products in case of combined advertising together with products of other manufacturers.

6.11 The Purchaser may deliver the products to further operating facilities (hereinafter: “Point of Sale”). If the quality criteria described in nos. 6.1-6.10 are not complied with by a Point of Sale, BERGERAT shall set a reasonable deadline within the framework of a reminder so that the Point of Sale can take remedial action. It is incumbent on the Purchaser to influence of concerned Point of Sale and to induce it to comply with the quality criteria. If the deadline expires unsuccessfully, the Purchaser is prohibited from continuing to supply the Point of Sale in question with BERGERAT products if BERGERAT has given it instructions to do so. If the quality criteria are not complied with thereafter or if further Points of Sale violate them, BERGERAT is entitled to stop supplying the Purchaser completely and to terminate unfulfilled orders.

§ 7 Cancellation

In the event of extraordinary termination by BERGERAT due to breach of contract by the Purchaser, in particular in the event of breaches of § 6 no. 6.11, the promises for bonuses or advertising cost subsidies still to be paid shall lapse.

§ 8 Breach of contract

In the event of a culpable breach by the Purchaser of the essential obligations of these GTC, in particular in the event of serious breaches of § 6 nos. 6.1 to 6.11 and of the obligations arising from the Code of Conduct pursuant to § 14, BERGERAT may waive the payment of promised bonuses and advertising cost allowances as premiums for good contract performance or reclaim bonuses or advertising cost allowances already paid out for the year in question.

§ 9 Advertising material

The advertising materials (e.g. free samples, testers, facticals) made available to the Purchaser by BERGERAT to an economically justifiable extent remain the property of BERGERAT and may only be used for advertising purposes as intended. Any other disposal, in particular the sale of advertising material of any kind, is prohibited. The Purchaser is, however, entitled to hand out free samples provided to him to end consumers free of charge and in accordance with the intended use to a reasonable extent for advertising purposes. Information marked “©BERGERAT Group GmbH”; such as price lists, information on new products and promotional leaflets, are only intended for the Purchaser’s internal use and may not be published or otherwise brought to the attention of third parties.

§ 10 Retention of title

• The delivered goods remain the property of BERGERAT until full payment of all claims to which BERGERAT is entitled from the business relationship.
• In the ordinary course of business, the Purchaser is entitled to sell the delivered products to the end consumer. However, the Purchaser already assigns all claims arising from the resale in full to BERGERAT upon conclusion of the contract. BERGERAT accepts the assignment. The Purchaser is authorised to collect these claims after their assignment. This collection authorisation can only be revoked if the Purchaser does not fulfil his payment obligations. Offering the goods via the internet is only permitted on condition that a corresponding agreement is made with BERGERAT, which is possible on request.
• BERGERAT undertakes to release securities granted which exceed the claims by more than 10% at the request of the Purchaser. The pledging or transfer by way of security of the products subject to retention of title is not permitted. In the event of seizure or confiscation of the products subject to retention of title, the Purchaser must inform the third party of BERGERAT’ ownership. The Purchaser must immediately inform BERGERAT of such measures or events.
• 11 Warranty
• The right to refuse subsequent performance under the legal conditions remains unaffected. BERGERAT is entitled to make the owed subsequent performance dependent on the Purchaser paying the due purchase price. However, the Purchaser is entitled to retain an appropriate part of the purchase price in relation to the defect.
• The Purchaser shall give BERGERAT the time and opportunity required for the owed subsequent performance, in particular to hand over the rejected products for inspection purposes. In the event of a replacement delivery, the Purchaser shall return the defective item to BERGERAT in accordance with the statutory provisions. BERGERAT will only bear the costs for transport and inspection of the defect, if a defect actually exists. In the case of an unjustified request for rectification of the defect, these shall be borne by the Purchaser, unless the purchaser could not have recognised the lack of defectiveness.
• If the supplementary performance fails or if a reasonable period to be set by the Purchaser for the supplementary performance has expired unsuccessfully or is dispensable in accordance with the statutory provisions, the Purchaser may, at its option, demand a reduction in price or withdraw from the contract.
• However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the Purchaser shall not be entitled to withdraw from the contract.
• Claims of the Purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 12 and are otherwise excluded.
• Further claims of the Purchaser are, as far as legally permissible, limited in amount to twice the purchase price of the quantity of goods directly related to the damage. This applies in particular to compensation for damage that has not occurred directly to the products themselves.
• The provisions of §§ 445a, 445b Civil Code (BGB) are excluded. As compensation, the Purchaser to equivalent claim within § 478 para. 2 BGB. For this purpose, the parties agree to offset the damage against the next order. The Purchaser is obliged to notify BERGERAT immediately of any recourse case arising.
• Defects or damage to the delivered products that cannot be discovered within the 10-day period even in the case of careful inspection must be reported to BERGERAT immediately after discovery. In all other respects, the statutory provisions on warranty shall apply, in particular § 377 of the German Commercial Code (HGB) shall apply to merchants. If the Purchaser fails to properly inspect the goods and/or notify BERGERAT of defects, BERGERAT shall not be liable for the defect that was not notified in time or properly in accordance with the statutory provisions.

§ 12 Liability

• The liability of BERGERAT towards the Purchaser for damages is excluded, unless BERGERAT can be accused of intent or gross negligence.
• In the event of simple negligence, BERGERAT is only liable (subject to statutory limitations of liability) for (a) damages resulting from injury to life, body or health and (b) damages from the breach of essential contractual obligations. Essential contractual obligations are those whose fulfilment is necessary for the achievement of the purpose of the contract or which make the execution of the contract possible in the first place. In this case, the liability is limited to damages that are foreseeable and typical for the contract at the time of conclusion of the contract.
• The above limitations of liability also apply to the legal representatives or vicarious agents of BERGERAT whose fault BERGERAT is responsible for. They do not apply to liability under the Product Liability Act.

§ 13 Statute of limitation

• Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery.
• The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Purchaser based on a defect of the products, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the Purchaser pursuant to § 12 para. 2 a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

§ 14 Code of Conduct

The parties declare that they and the contractors they use to fulfil their contractual obligations share the following values:

(1) Conduct their business activities in accordance with all applicable laws.

(2) Not to solicit or accept bribes, offer, authorise, promise or pay bribes or make or receive improper payments.

• Not to offer or accept gifts or hospitality that are intended to improperly influence the recipient.
• Promptly report to BERGERAT any conflict or potential conflict of interest that involves or may involve BERGERAT.
• Not to enter into anti-competitive agreements or otherwise attempt to undermine free and fair competition.
• Not to act in a way that violates economic or trade sanctions or causes BERGERAT or any BERGERAT affiliate to violate economic or trade sanctions.
• Not to disclose BERGERAT confidential information to any other person unless expressly authorised by BERGERAT or required by law.
• To respect human rights and dignity and to prevent any kind of discrimination and not to participate in any way in child labour, human trafficking or modern slavery.
• To respect Workers’ rights and the rights of trade unions.
• Employees shall receive at least the legal minimum wage, deductions from wages as punishment of employees are prohibited. In addition, the statutory regulations on working hours are complied with.
• The employees are employed on the basis of valid employment contracts, where necessary a valid work permit is available.
• To comply with all applicable environmental laws and regulations and strive to reduce environmental impacts and conserve natural resources.
• To provide a safe and secure working environment in accordance with all applicable health and safety legislation.

Compliance with this Code of Conduct is a condition of contractual cooperation with BERGERAT. All employees as well as agents and suppliers of BERGERAT are informed about the requirements of the Code of Conduct.

§ 15 Final provisions

• Should one or more provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. Invalid or unenforceable provisions or loopholes shall be replaced by valid and enforceable provisions that come as close as possible to what was intended in economic terms.
• The place of performance is Wiesbaden. The Wiesbaden Regional Court is agreed as the place of jurisdiction.
• The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
• Subsequent amendments or additions to contracts must be made in writing. This also applies to any waiver of the written form requirement.

Valid from 01 March 2024