Fizz Creations GmbH Terms & Conditions
In this document the following words shall have the following meanings:
1.1 Agreement” means these Terms and Conditions together with the terms of any applicable Purchase Order;
1.2 “Buyer” means an Authorised Reseller of Fizz Creations GmbH and also referred to here as “Fizz”;
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 “Purchase Order” means the standard Buyer document which describes the goods and/or services to be provided by the Supplier and which provides a maximum value payable by the Buyer to the Supplier;
1.5 “Supplier” means Fizz Creations GmbH the organisation or person who supplies goods and/or services to the Buyer;
1.6 “Authorised Reseller” means a buyer who is Authorised to sell, and or offer for sale, the goods to end users. An Authorised Reseller shall have signed an Authorised Seller Agreement.
1.7 “Customer” means an end user of the product or service, supplied by the buyer or Fizz
2.1 Orders given by the customer to Fizz Creations GmbH are not binding until accepted either by written acknowledgement from Fizz Creations GmbH or by delivery of the goods (whichever is earlier). Orders accepted by Fizz Creations GmbH and goods sold by Fizz Creations GmbH are subject to the terms and conditions set out in this document. Unless and only to the extent expressly stipulated or agreed in writing by a Fizz Creations GmbH director, these terms and conditions shall prevail to the exclusion of any and all terms and conditions put forward by the customer, resulting in no contractual effect.
2.1.1 Unless previously agreed in writing by a Fizz Creations GmbH director, no verbal, written, or other addition to, or variation or waiver of these conditions shall be effective. – Any clerical errors set out in this catalogue / document are subject to correction. – If any provision of these conditions is held by any competent authority to be unenforceable in whole or in part, then the validity of the other provisions of the conditions, and the remainder of the provision in question, shall not then be affected. – The minimum order value is €250.
-Items may only be purchased by packs (not individually). Product pack sizes are detailed on the price list.
-Distributors must purchase items by master cartons only.
-The shipping cost will be added to the invoice (unless the order is collected) and varies depending on the territory, as follows:
Germany: 5% of order value
Rest of EU (not including islands): 7% of order value
Rest of Europe: charged at cost
Orders over €1000 or orders shipped on pallets will be charged at cost.
-Any customs duties or VAT (for deliveries to non EU countries) are payable by the customer.
-For carton labels or any other special requirements, please discuss with your account manager.
2.1.2 These Terms and Conditions shall apply to all contracts for the supply of goods and/or services by the Supplier pursuant to one or more Purchase Order (s).
2.2 Where it is agreed that the Supplier shall supply goods and/or services, the goods and/or services to be supplied, the price payable and any other special terms agreed between the parties shall be set out in the Purchase Order. All Purchase Orders shall be subject to these Terms and Conditions.
2.3 No changes or variations to any Purchase Order shall be effective unless agreed in writing between the parties.
2.4 These Terms and conditions may be changed at any point in time by Fizz Creations GmbH. The updated version and any changes will be posted on our website.
2.5 The full extent of any agreement between the parties shall be governed by the Authorised Reseller agreement.
2.6 No rights to sell, or offer for sale any goods supplied by Fizz Creations GmbH shall be granted to any other party, except to an Authorised Reseller who has signed an Authorised reseller Agreement
- Price and Payment
3.1 Quotations Unless otherwise stated, quotations and/or prices provided by us are valid for a period of 28 days and only constitute an invitation to treat. We reserve the right to withdraw a quotation or to alter any of its items, including pricing, at any time.
3.2 Price Unless otherwise stated, all prices quoted by Fizz Creations GmbH exclude VAT, packaging and delivery costs (whether payable by Fizz Creations GmbH or the customer), all of which will be paid by the customer.
3.2.1 The price of goods will be in accordance with the up to date Fizz Creations GmbH price list, a copy of which is available to customers at any time. Price reductions can only be authorised in writing by a Fizz Creations GmbH director.
3.2.2 Fizz Creations GmbH reserve the right to alter any prices or remove discounts at any time without notice.
3.2.3 The price and any taxes and expenses for the goods and/or services shall be as specified in the Purchase Order and, unless otherwise so stated, shall be exclusive of any applicable Value Added Tax
3.2.4 An invoice shall be produced by the Supplier to the Buyer in accordance with the terms set out in the Purchase Order. The Buyer shall pay for the goods and/or services at the end of the month following the month in which the goods and/or services are supplied or in which the invoice is received, whichever is the later. In no circumstances shall the time for payment be of the essence of the Agreement.
3.2.5 The Buyer shall not be responsible for any expenses, charges or price other than those set out in the Purchase Order.
3.2.6 In the event of late payment by the Buyer, the Supplier shall be entitled to charge the Buyer interest at the rate of 2% per annum above the base rate of the Bank of England, from the date when payment becomes due from day to day until the date of payment.
3.2.7 If the parties agree that the Supplier is to provide goods and/or services or resources in addition to those specified in a Purchase Order, then such agreement will be reflected in a further Purchase Order, which will be deemed incorporated into this Agreement.
3.2.8 Once a Purchase Order has been agreed by the Buyer the price for the goods and/or services shall be fixed.
3.3 Cancellation – Orders that have been accepted may not be cancelled by the customer unless express permission has been granted by a Fizz Creations GmbH director. If such an agreement is given, the customer will pay a sum in order of work done. – All cancelled orders or returned goods will be subject to a 50% returns charge, unless a waiver is agreed in writing by a Fizz Creations GmbH director prior to stock being returned. – Returns will only be accepted with an authorised returns reference number. Any deliveries received without a valid returns reference number will be refused. Please call customer services on 01903 327006 to apply for a returns reference number.
4.1 The Supplier warrants and guarantees that all goods and materials supplied under this Agreement shall be free from any defects, patent or latent, in material and workmanship, conform to applicable specifications and drawings and, to the extent that detailed designs were not provided to the Buyer, will be free from design defects and in every aspect suitable for the purposes intended by the Buyer, as to which the Supplier hereby acknowledges that it has had due notice. The approval by the Buyer of any designs provided by the Supplier shall not relieve the Supplier of its obligations under any provision contained in this Clause.
4.2 The Supplier’s obligations under this Clause shall extend to any defect or non- conformity arising or manifesting itself within the manufacturer’s warranty period from delivery.
4.3 Where there is a breach of the warranty contained in this Clause by the Supplier, the Buyer, without thereby waiving any rights or remedies otherwise provided by law and/or elsewhere in this Agreement, may require the Supplier to repair or replace the defective goods at the Supplier’s risk and expense or repay the price or part of the price relating to the defect to the Buyer.
4.4 Items repaired or replaced shall be subject to these Terms and Conditions in the same manner as those originally delivered under this Agreement.
5.1 Delivery of the goods shall be made to the buyer’s normal place of business as stated on the Purchase Order, or to such other place of delivery as is agreed between the parties in writing prior to delivery of the Goods. Any other such location as the Buyer shall direct, will be at the expense of the buyer, or mutually agreed by the parties.
5.2. The Supplier will deliver the Goods during normal business hours and the Supplier shall off-load the Goods any time agreed between the parties for such delivery shall be of the essence of the Agreement, and the Buyer shall be entitled to cancel, without notice, the whole or any part of this Agreement if this Clause is not complied with by the Supplier.
5.3 Where the Buyer cancels the whole or part of the contract in accordance with Clause 5
5.3.1 All sums payable by the Buyer in relation to the whole or part of the contract cancelled shall cease to become payable;
5.3.2 All sums paid by the Buyer in relation to the whole or part of the contract cancelled shall be repaid by the Supplier immediately;
5.4 All deliveries shall be made under the International Chamber of Commerce (ICC)Incoterms 2018. Being “Ex Works (EXW)” Fizz Creations GmbH, German warehouse in Nordhorn, Germany. Unless agreed by the parties to be otherwise.
- Payment and returns Credit is granted by us in sole and absolute discretion. We reserve the right to withdraw credit at any time and demand payment in full.
6.1 Payment for goods, where credit has been agreed, shall be made within 30 days from the date of invoicing. Any extension in credit terms must be made prior to raising an order and must be confirmed in writing by a Fizz Creations GmbH director.
6.2 All invoices from Fizz Creations GmbH are to be paid within 30 days, commencing from the date of invoicing. Payment will be made directly to Fizz Creations GmbH.
Cheques are to be made payable to Fizz Creations GmbH. If paying by BACS, please contact customer services or credit control on +44 1903 327006.
6.3 Any sums outstanding after the 30 day net period will accrue interest, charged at 4% above Lloyds base rate. In consideration of Fizz Creations GmbH providing a credit facility to the customer with respect to the supply of goods, the signatories of the order document/form accept joint liability for any invoices not settled by the customer within 30 day of the invoice date.
7.1 The Supplier warrants that it has good title to the goods and that it will transfer such title as it may have in the goods to the Buyer pursuant to Clause 6.2.
7.2 Title in the goods will pass to the Buyer when the goods are unconditionally appropriated (by either party or by or with the consent of either party) to this Agreement, or on delivery to the Buyer, whichever happens first. Without prejudice and in addition to any other remedies we may have, the property in any goods delivered to the customer, or for customers’ use, shall remain under the ownership of Fizz Creations GmbH until invoices are paid in full for these or any other goods supplied by us to the customer at any time. Until such payment is made in full, the customer acts as fiduciary agency and bailee and shall store and insure the goods properly in such a way that they are clearly identifiable as property of Fizz Creations GmbH, who reserve the right to require the customer to return the goods at the customer’s expense. If this requirement is not met immediately, Fizz Creations GmbH have the right without prior notice at any time to retain or retake possession of the goods, in whole or part. Hereby the customer grants Fizz Creations GmbH the right to enter any premises occupied by the customer to recover the goods from anything they are stored in, attached to, or displayed on, without Fizz Creations GmbH bearing any responsibility for any damage caused.
8.1 The goods will be and shall remain at the Supplier’s risk until such time as they are delivered to the Buyer (or at his direction) and are found to be in accordance with the requirements of this Agreement. It shall be the duty of the Supplier at all times to maintain a contract of insurance over the goods and, on request from the Buyer, to assign to the Buyer the benefits of such insurance until such time as to be unloading at the delivery location, the
risk in whole shall be the customer’s, who shall insure accordingly. Exception being when goods are returned to Fizz Creations GmbH at their request and the goods physically located on their premises.
8.2 Any other terms of delivery or risk shall be stated and agreed by the Seller on an official Purchase order and made under the International Chamber of Commerce (ICC) Incoterms 2018
- Inspection of Goods
9.1 The Buyer shall inspect the goods upon delivery.
9.2 Where goods are damaged the Buyer shall notify the Supplier within 48 hours, or two business days. Failure to do so, will void any right of return or rejection, and the goods will be deemed to have been accepted in good condition. The Buyer may reject the damaged goods and the following provisions shall apply:
9.2.1 the Supplier shall collect the damaged goods from the Buyer at the Supplier’s expense within 7 days, or a credit will be issued;
9.2.3 all sums payable by the Buyer in relation to the damaged goods shall cease to become payable, once goods are agreed to be collected. Or automatically credited within 7 days;
9.2.4 all sums already paid by the Buyer in relation to the damaged goods shall be repaid by the Supplier immediately; 8.3 Where there are shortages in the order the Buyer shall notify the Supplier, within 48 hours and or two business days. Failure to do so, will void any right of return or rejection, and the goods will be deemed to have been accepted in good condition and in full, and the following provisions shall apply,:
9.3.1 all sums payable by the Buyer in relation to the missing goods shall cease to become payable;
9.3.2 all sums paid by the Buyer in relation to the missing goods shall be repaid by the Supplier immediately;
9.4 If the Buyer so requests, the Supplier shall immediately replace damaged goods or supply goods which are missing at the Supplier’s expense or the Buyer shall be entitled to cancel, without notice, the whole or any unexecuted part of the order and the rights referred to in Clause 5.2 shall apply.
9.5 Where there is an excess of goods in relation to the order the Buyer may reject the excess goods by notice in writing to the Supplier and the following provisions shall apply:
9.5.1 the Supplier shall collect the excess goods from the Buyer at the Supplier’s expense;
9.5.2 no sum shall be due to the Supplier for the excess goods and in the event that sums are paid to the Supplier for the excess goods, the Supplier shall repay such sums to the Buyer immediately.
9.6 The Buyer may accept excess goods by notifying the Supplier of such acceptance and the price of the excess goods shall be payable by the Buyer.
9.7 The Supplier shall repair or replace free of charge, goods damaged or lost in transit upon receiving notice to that effect from the Buyer.
9.8 The Buyer’s signature on any delivery note of the Supplier is evidence of the number of packages received and items received unless a shortage is reported within 48 hours.
- Supplier’s Obligations
10.1 The Supplier warrants, represents and undertakes that:
10.1.1 all services performed under this Agreement shall be performed with all due skill and care, in a good and workmanlike manner and otherwise in line with best practice within its industry (“Best Industry Practice”);
10.1.2 the Supplier Personnel will possess the qualifications, professional competence and experience to carry out such services in accordance with Best Industry Practice;
10.1.3 the services will not in any way infringe or violate any Intellectual Property Rights, trade secrets or rights in proprietary information, nor any contractual, employment or property rights, duties of non-disclosure or other rights of any third parties; and
10.1.4 it has full capacity and authority to enter into this Agreement and that it has or will obtain prior to the commencement of the services, any necessary licences, consents and permits required of it for the performance of the services.
10.2 The Supplier shall provide the Buyer with such progress reports, evidence or other information concerning the services as may be requested by the Buyer from time to time.
10.3 The Supplier shall be responsible for maintaining such insurance policies in connection with the provision of the services as may be appropriate or as the Buyer may require from time to time.
10.4 The Supplier shall procure that the Supplier Personnel take all reasonable steps to safeguard their own safety and the safety of any other person who may be affected by their actions, and the Supplier agrees to indemnify and keep indemnified the Buyer from all and any liabilities, obligations, costs and expenses whatsoever arising from any loss, damage or injury caused to the Buyer or any third party by the Supplier Personnel.
11.1 The Buyer or Supplier may terminate this Agreement for any reason by providing 15 days prior written notice to the other party.
11.2 The Buyer may terminate this Agreement with immediate effect by providing written notice to the Supplier if:
11.2.1 the Supplier passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
11.2.2 the Supplier ceases to carry on its business or substantially the whole of its business; or
11.2.3 the Supplier is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
The Supplier agrees to indemnify the Buyer against all claims, costs and expenses which the Buyer may incur and which arise, directly or indirectly, from the Supplier’s breach of any of its obligations under this Agreement.
- Intellectual Property Rights
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Buyer, and the Supplier shall do all that is reasonably necessary to ensure that such rights vest in the Buyer by the execution of appropriate instruments or the making of agreements with third parties.
- Force Majeure
The Buyer shall not be liable for any delay or failure to perform any of its obligations under this Agreement if the delay or failure results from events or circumstances beyond its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, flood or industrial disputes, and the Buyer shall be entitled to a reasonable extension of its obligations.
- Relationship of Parties
Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in this Agreement shall be deemed to construe either of the parties as the agent of the other.
The Supplier shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Buyer.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed, and the remainder of
the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
No failure by the Buyer to enforce any of these Terms and Conditions shall constitute a waiver of its rights hereunder.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Purchase Order or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
- No third parties
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
- Entire Agreement
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written.
Any future publication of this agreement online at the following website: www.fizzcreations.com shall be deemed to be accepted from the published date and supersede these terms and conditions. These terms and conditions shall be governed by the Authorised Reseller agreement and shall form the Reseller Agreement shall form the overriding document and terms.
- Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the law of Germany and the parties hereby submit to the exclusive jurisdiction of the German courts.