General Terms of Sales, Delivery and Payment
1. Scope of application
(1) The present General Conditions of Sale (hereinafter: GCS) shall apply for all our business relationships with our customers (hereinafter: Buyer). The GCS shall apply in particular for contracts for the sale and/or delivery of movables (hereinafter: Item), regardless of whether we manufacture the Item ourselves or buy in from suppliers (Sections 433 and 651 of the German Civil Code [BGB]). The GCS shall apply only if the Buyer is a businessman (Section 14 BGB), a federal corporation under public law or a special fund under public law.
(2) These GCS shall apply exclusively and we only acknowledge the Buyer's conflicting or supplementary General Terms and Conditions of Business if we have explicitly agreed to them. This approval requirement shall apply in each case, for example even if we carry out delivery to the Buyer unconditionally in the knowledge of his General Terms and Conditions of Business.
(3) Our GCS shall be deemed to be acknowledged by the awarding of the contract or acceptance of the Item by the Buyer.
2. Offers and conclusion of the contract
(1) All offers from us shall be non-binding, if nothing else is explicitly stated in the offer. Our order confirmation in written form shall be required for the valid conclusion of the contract. This may be replaced by delivery or invoicing.
(2) Collateral agreements and other deviations from the contract wording or these GCS shall require the written form. This shall apply also for the waiver of the written form requirement.
3. Delivery/place of performance
(1) If nothing else is agreed, Thalhausen/Westerwald shall be the place of performance for obligations relating to us. If we deliver or dispatch the Item, delivery shall be carried out at the Buyer's risk and – subject to the arrangements of Section 6 of these GCS – at the Buyer's cost.
(2) Possible delivery time details shall be approximate and non-binding.
(3) Partial deliveries shall be permitted and cannot be rejected by the Buyer, if the rest is delivered some time, the partial delivery is not without interest for the Buyer and no additional costs accrue to the Buyer due to the partial delivery.
(4) If we cannot comply with binding delivery dates for reasons for which we are not responsible (non-availability of the service), we will immediately notify the Buyer about this and at the same time advise the foreseeable, new delivery deadline. If the service is also not available within the new delivery deadline, we shall be entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the Buyer. A case of non-availability of the service in this sense shall be deemed to be in particular the non-timely self-supply by our supplier, if we have concluded a congruent hedging transaction, if neither we nor our supplier is at fault or if we are not obliged to procurement in an individual case.
(5) The occurrence of our delay in delivery shall be determined by the statutory provisions. In any case, however, a warning together with the fixing of a final deadline in written form by the Buyer shall be required, if there is an absolute fixed-date transaction or we have seriously and definitively refused fulfilment. In case of doubt, a deadline of four weeks shall be deemed to be reasonable.
(6) The Buyer's rights as per Section 8 of these GCS and our statutory rights, particularly in the event of an exclusion of the obligation to perform (e.g. because of the impossibility or unreasonableness of the performance and/or rectification), shall remain unaffected.
(1) All previous lists and special price agreements shall lose their validity, subject to an agreement to the contrary, with the submission of a new price list.
(2) Price details shall be understood to be in euro, inclusive of domestic packaging and the statutory value-added tax applicable at the time. Shipping costs may be added as per Section 6 of these GCS.
5. Payment terms and conditions
(1) Our deliveries are payable within 14 days after the invoice date without a discount. Sample consignments are basically provided free of charge first of all and only invoiced if no carriage and postage paid return in flawless condition is carried out within 60 days.
(2) Offsetting with counterclaims shall only be permitted, if the counterclaim is established to be beyond dispute or legally valid. In the event of defects with the delivery, the Buyer's reciprocal rights in particular shall remain unaffected, as per Section 7 Para. 9 Clause 2 of these GCS.
(3) If it becomes discernible after conclusion of the contract (e.g. through an application for commencement of insolvency proceedings) that our entitlement to the purchase price is at risk due to the Buyer's lack of ability to perform, we shall be entitled according to the statutory provisions to the refusal of performance and – if appropriate after the fixing of a deadline – to withdrawal from the contract (Section 321 BGB). In the case of contracts for the manufacture of unfungible items (one-off productions), we may declare the withdrawal immediately; the statutory regulations about the dispensability of the fixing of a deadline shall remain unaffected.
(1) In the event of shipment, if nothing to the contrary is agreed, delivery shall be carried out by railway, post, parcel service or carrier at our option. For a net value of goods of more than EUR 510.00, delivery shall be carried out carriage and postage paid to the Buyer's domestic delivery address or, in the event of exportation, free to the German border/German airport duty unpaid. For a net value of goods below EUR 510.00, we charge the carriage and postage costs actually accruing.
(2) For a net value of goods below EUR 150.00, we charge a flat processing fee amounting to EUR 15.00 plus the statutory value-added tax applicable at the time in addition to the costs as per Para. 1 Clause 3.
7. Notification of defects and warranty
(1) Statutory provisions shall apply, if nothing else is determined below, for the Buyer's rights in the event of material and title defects (including wrong and short delivery as well as incorrect assembly or inadequate assembly instructions). In all cases, the statutory special provisions in the event of final delivery of the Item to a consumer shall remain unaffected (recourse against the supplier in accordance with Sections 478 and 479 BGB).
(2) The basis of our liability for defects shall be above all the agreement reached about the condition of the Item. All the product specifications that are the subject-matter of the individual contract shall be deemed to be the agreement about the condition of the Item; it makes no difference in this regard whether the product specification originates from the Buyer, from the manufacturer or from us.
(3) If the condition was not agreed, it should be assessed whether there is a defect or not according to the statutory regulations (Section 434 Para. 1 Clauses 2 and 3 BGB). However, we shall assume no liability for public statements of the manufacturer or of other third parties (e.g. advertising statements).
(4) The following shall be deemed to have precedence over Paras. 2 and 3: If the Item corresponds to a sample approved by the Buyer, it shall be deemed to be in accordance with the contract.
(5) Subject to an agreement to the contrary or assurance by us, negligible differences with regard to colours, quality and equipment, which do not constitute a defect on the basis of the standard conditions of the German textile industry, shall be deemed to be in accordance with the contract. We shall assume no warranty that deliveries turn out to be completely uniform in colour and form or match with samples or specimens.
(6) If not explicitly agreed between us and the Buyer in written form, a suitability of the Item for a specific intended use shall not be agreed.
(7) The Buyer's claims arising from defects shall require that he has complied with his statutory obligations pertaining to inspection and notification of defects (Sections 377 and 381 of the German Commercial Code [HGB]). If a defect manifests itself during the inspection or later, this should be reported to us in writing without delay. Notification shall be deemed to be immediate if it is carried out within 12 days. Regardless of this obligation pertaining to inspection and notification of defects, the Buyer must notify obvious defects (including wrong and short delivery) in writing within 12 days from delivery. If the Buyer neglects the proper inspection and/or notification of defects, our liability shall be excluded for the defect not notified.
(8) If the delivered object is defective, we may choose first of all whether we provide rectification by means of elimination of the defect (remedying) or through the delivery of a flawless object (replacement delivery). Our right to refuse rectification under the statutory requirements shall remain unaffected.
(9) We shall be entitled to make the due rectification dependent on the Buyer paying the outstanding purchase price. However, the Buyer shall be entitled to withhold an appropriate part of the purchase price in relation to the defect.
(10) The Buyer must give us the time and opportunity required for the due rectification and above all must hand over the Item complained about for inspection purposes. In the case of replacement delivery, the Buyer must return the defective object to us according to the statutory provisions.
(11) We shall bear the expenses required for the purpose of the inspection and rectification, particularly transportation, travel, labour and material costs (not: dismantling and installation costs), if a defect actually exists. Otherwise, we may require that the costs accruing from the unfounded defect rectification request (particularly inspection and transportation costs) are compensated by the Buyer, unless the lack of defectiveness was not discernible for the Buyer.
(12) In urgent cases, for protection against excessive losses, the Buyer shall have the right to eliminate the defect himself and to request from us reimbursement of the expenses actually required for this. We should be informed about such a self-execution in advance, if providing this prior information is not impossible; in that case, the information must be provided immediately after carrying out the self-execution. The right to self-execution shall not apply, if we were to be entitled to refuse a corresponding rectification according to the statutory provisions.
(13) If the rectification has failed or a reasonable deadline for the rectification to be set by the Buyer has expired to no avail or is unnecessary according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, there shall be no right of withdrawal in the case of an insignificant defect.
(14) The Buyer's entitlements to compensation or reimbursement of unnecessary expenses shall also only apply in the case of defects in accordance with Section 8 of these GCS and shall be otherwise excluded.
8. Other liability
(1) If nothing else ensues from these GCS including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations according to the statutory provisions.
(2) We shall be liable for compensation – for whatever legal reason – in the context of fault-based liability in the event of wilful intent and gross negligence. In the case of ordinary negligence, we shall be liable subject to a more lenient standard of liability according to the statutory provisions (e.g. for diligence concerning our own matters) but only a) for losses from the harm to life, body or health, b) for losses from the not insignificant breach of a fundamental contractual obligation (i.e. of an obligation whose fulfilment generally simply enables the due execution of the contract and on the compliance with which the party to the contract periodically relies and may rely); in this case, however, our liability shall be limited to compensation of the foreseeable, typically occurring loss/damage.
(3) The liability limitations resulting from Para. 2 shall apply also in the event of breaches of obligations by or for the benefit of persons, whose negligence we have to be responsible for according to the statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a warranty for the condition of the Item and for the Buyer's claims according to the German Product Liability Act [Produkthaftungsgesetz].
(4) The Buyer may only withdraw or terminate due to a breach of obligations that does not consist of a defect, if we are responsible for the breach of obligations. An unrestricted right of termination for the Buyer (particularly in accordance with Sections 651 and 649 BGB) is excluded. The statutory requirements and legal consequences shall otherwise apply.
9. Statute of limitations
(1) In deviation from Section 438 Para 1 No. 3 BGB, the general limitation period for claims from material and title defects shall amount to one year from delivery. If an acceptance is agreed, the statutory limitation shall commence on acceptance.
(2) However, if the Item involves a construction or an object, which has been used commensurate with its customary manner of use for a construction and which has given rise to its defectiveness (building material), the limitation period shall amount to 5 years from delivery in accordance with the statutory regulations (Section 438 Para. 1 No. 2 BGB). Other statutory special provisions on the statute of limitations (particularly Section 438 Para. 1 No. 1, Para. 3, Sections 444 and 479 BGB) shall also remain unaffected.
(3) The aforesaid limitation periods of the sales law shall apply also for contractual and non-contractual compensation claims of the Buyer, which are based on a defect of the Item, unless the application of the normal statutory limitation (Sections 195 and 199 BGB) would result in a shorter statutory limitation in an individual case. However, the Buyer's compensation claims as per Section 8 Para. 2 Clause 1 and Clause 2(a) of these GCS and according to the German Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.
10. Reservation of title
(1) The delivered Item shall remain our property until the satisfaction of the purchase price and discharge of all the present and future receivables accruing from the business relationship, for whatever legal reason, as reserved goods. The Buyer must treat the reserved goods carefully. He must adequately insure them against fire, water and theft losses for the replacement value at his own cost. If maintenance and servicing work is required according to the manufacturer's information handed over to the Buyer, the Buyer must carry it out in good time at his own cost.
(2) The handling and processing of the reserved goods is carried out for us without obligating us.
(3) If reserved goods are sold by the Buyer or combined with other items, he shall assign to us right now the receivables accruing from the sale or combination to the extent of the value of the reserved goods with all the subsidiary rights and priority over the rest; we shall accept this assignment. The value of the reserved goods shall correspond to the amount invoiced by us plus a security surcharge of 10%, but which shall not be taken into account, if rights of third parties preclude it.
(4) The Buyer shall only be revocably entitled and authorised to the sale or combination of the reserved goods in the normal proper course of business and subject to the proviso that the receivables described in the paragraph identified previously actually transfer to us. The Buyer shall not be entitled to the disposal of the reserved goods by other means, particularly pledging or collateral assignment.
(5) We authorise the Buyer, subject to revocation, to collect the receivables assigned to us. At our request, the Buyer must name the debtors for the receivables assigned to us and notify them of the assignment. We shall also be entitled to notify the debtors of the assignment.
(6) The aforementioned collection authorisation or the authorisation for resale may be revoked, if the Buyer does not duly fulfil his payment obligations.
(7) If and in so far as the securities established in our favour exceed the receivables to be secured by more than 10%, we will release a corresponding proportion of the security rights at the Buyer's request.
(8) In the event of seizures of the reserved goods or other security rights by third parties, the Buyer shall be obliged to point out our rights. In addition, the Buyer must immediately advise us about seizures of our reserved goods (e.g. attachment, theft) or any other impairment of our rights.
11. Restrictions on use
If the purchased Item was produced in accordance with statutory or official standards, the Buyer shall be permitted use of the Item exclusively in the scope of application of these standards, if they are referred to in the offer or the order confirmation together with annexes.
12. Data protection
We point out that the data required within the framework of the conduct of business is processed and stored by means of EDP equipment in accordance with Section 33 of the German Federal Data Protection Act [Bundesdatenschutzgesetz]. Personal data is only gathered, processed and used, if this is necessary for the contract conclusion and processing as well as for accounting purposes.
13. Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply for all legal relationships of the parties with the exclusion of the provisions that refer to foreign legal systems and with the exclusion of the regulations for the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) If the party to the contract is a businessman, federal corporation under public law or special fund under public law or he has no general place of jurisdiction in the home market, Neuwied shall be the exclusive legal venue for all disputes resulting from the contractual relationship. We shall also be entitled to sue the party to the contract at his general place of jurisdiction.
First published on 01.05.2016