GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
§ 1 Applicability
1. The following General Terms and Conditions of Sale and Delivery are considered to be accepted and become an integral part of the contract upon placing the order, although upon acceptance of the contract item at the latest.
2. Offers and deliveries are made exclusively on the basis of this General Terms and Conditions of Sale and Delivery. Deviating general terms and conditions of the customer not expressly acknowledged by us in written form are non-binding to us, even if they are not expressly objected to. Our General Terms and Conditions of Sale and Delivery shall also apply to all future business relationships, even if they are not expressly agreed upon once again.
3. Our General Terms and Conditions of Sale and Delivery shall only be applicable to entrepreneurs as stipulated in § 310 Clause 1 BGB (German Civil Code).
4. Deviating terms and conditions of sale and delivery shall only be effective if we confirm their validity in written form.
§ 2 Conclusion of the contract and modifications
1. Our offers are always subject to confirmation. We expressly reserve the right of prior sale of qualities and quantities stated as in stock.
2. In the event that we attach samples, patterns or documents such as drawings, weights and measurements to an offer, they are only approximate, unless they have been explicitly referred to as binding. We reserve the proprietary and copyrights to cost estimates, drawings and other documents. These documents must not be disclosed to third parties.
3. Any contracts and obligations shall take effect not before the written confirmation of the supplier. Insofar as contracts are executed without written confirmation (e.g. because of schedules), these contracts shall take effect upon delivery by applying these General Terms and Conditions of Business.
4. Supplements and modifications of the contract must be made in written form.
§ 3 Prices, payment
1. If our compensation is not fixed, the prices indicated in the supply contract shall be applicable.
2. The prices are ex works and plus VAT.
3. The prices do not contain ancillary expenses for packaging, transport, insurance and the like.
4. In case of small consignments, we shall be entitled to demand minimum invoice amounts or surcharges.
5. Unless separate terms of payment have been agreed upon, our invoices shall be due for payment without deductions within 30 days from the date of the invoice.
6. In the event that the customer falls into arrears, we shall be entitled to demand default interests amounting to 8% above the basic interest rate, as stipulated in § 247 BGB (German Civil Code); if we are able to prove that we suffered greater damage due to the default, we shall be entitled to assert claims accordingly.
7. In the event that doubts in the customer’s creditworthiness arise after accepting the order, the seller shall be entitled to either demand an advance payment or the provision of a security prior to the delivery or withdraw from the contract and demand compensation for his expenditures from the customer.
8. The customer shall only be entitled to offset if his counterclaims have been determined by a court of law, are undisputed or acknowledged by us. Furthermore, the customer shall only have the right of retention if his counterclaim is based on the same contractual relationship. Bills of exchange are accepted only on the basis of special agreements on account of performance, with no assumption of liability for protest and timely presentation. Discount charges shall be borne by the purchaser.
§ 4 Delivery period
1. The delivery period commences upon receipt of the order confirmation, although not prior to the provision of documents, permissions and approvals to be obtained by the customer as well as the receipt of the agreed advance payment.
2. Delivery periods are only approximate. In the event that the delivery date is exceeded by more than 14 days, the customer shall be committed to set a grace period of 4 weeks. The delivery period is considered to be observed if the contract item has left the works or the readiness for dispatch has been indicated until its expiration.
3. Force majeure at the seller or his suppliers or other unusual events through no fault of the seller, such as e.g. strikes, lock-outs, energy shortage, transport difficulties and the like as well as the circumstance that any raw materials and materials required for the execution of the contract are wholly or partially not available to the seller through no fault of him release him from his delivery obligation for the duration of the impediment to the extent of their effects. This shall be immediately indicated to the purchaser. In the event that the agreed delivery period is exceeded by more than 2 months due to the impediment, both contract parties shall be entitled to withdraw from the contract concerning the quantities affected by the impediment. Claims for compensation and further claims of the purchaser shall be excluded. The supplier shall not be responsible for the aforementioned circumstances either, if they already exist during default in delivery. In important cases, the supplier shall inform the customer of the commencement and the end of such impediments as soon as possible.
4. In the event that the customer is in default of acceptance or culpably infringes his other obligations to cooperate, we shall be entitled to demand compensation for the damage occurred, including possible additional expenditure. The right to assert further claims shall be reserved. 5. Insofar as the prerequisites stated in 4. are available, the risk of accidental loss or deterioration of the goods is transferred to the customer at the time he fails to accept the goods or render the payment.
6. We shall be liable in accordance with the statutory provisions, if the underlying sales contract is a fixed-date transaction as stipulated in § 286 Clause 2 No 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We shall also be liable in accordance with the statutory provisions, insofar as the customer is entitled to assert that he is no longer interested in the further fulfilment of the contract as a result of default in delivery through our fault.
7. Furthermore, we shall be liable in accordance with the statutory provisions, insofar as the default in delivery is based on our intentional or gross negligent breach of the contract. Insofar as the default in delivery is not based on our intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
8. We shall also be liable in accordance with the statutory provisions, insofar as the default in delivery is caused by our culpable infringement of an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
9. The enforcement of further statutory claims and rights of the customer shall be reserved.
§ 5 Foreign trade transactions In case of foreign trade transactions, the following shall apply:
1. Commercial clauses shall be interpreted in accordance with the Incoterms. All charges, taxes and expenses associated with the contract shall be borne by the customer. In case it is agreed that the seller assumes the customs and import duties of the country of destination, increases of such duties between the order confirmation and the delivery of the goods shall be borne by the customer.
2. In case the payment is rendered in a currency other than EUR, the fluctuations of the rate of exchange between this currency and EUR shall be credited to or debited from the customer’s account.
§ 6 Transfer of risks, acceptance
1. Upon dispatch of the delivery at the latest, the risks are transferred to the customer, even if partial deliveries are performed or the supplier has taken over other services, e.g. the delivery costs or transport and installation. Upon request of the customer, the consignment is insured against theft, damage caused by fracture, transport, fire and water as well as other insurable risks.
2. In the event that the delivery is delayed due to circumstances the customer is responsible for, the risk is transferred to the customer from the date of the readiness for dispatch. The supplier shall, however, be committed to take out the demanded insurances upon request and at the costs of the customer.
3. Even if they exhibit minor defects, the customer shall accept the delivered items, irrespective of the rights stipulated in § 8.
4. Partial deliveries are admissible.
§ 7 Reservation of title
1. We reserve the title to the delivered goods (goods subject to reservation of title) until full payment of the price and all other, also future, claims arising from the business relationship with the customer.
2. The processing of the goods subject to reservation of title by the customer is free of charge for us, without any obligations on our part in relation thereto; the new product becomes our property. In the event of processing with other goods not belonging to the customer, we shall obtain the co-ownership of the new product in proportion of the value of the goods subject to reservation of title to the value of the other goods; in case of combination, mixing or blending with other goods, we shall obtain the co-ownership in accordance with the statutory provisions. In case the customer obtains the sole ownership of the goods by combination, mixing or blending, he hereby transfers to us the co-ownership in proportion of the value of the goods subject to reservation of title to the other goods at the time of combination, mixing or blending. In the aforementioned cases, the customer shall store the goods that are our property or shared property and also goods subject to reservation of title as stipulated in the following provisions, free of charge.
3. The customer hereby assigns to as all claims arising from the re-sale of the goods subject to reservation of title to the amount of the value of the goods subject to reservation of title, including all subsidiary rights. The same applies if the goods subject to reservation of title are integrated into the property of a third party as the major component. In case we are the (co-)owners of the goods subject to reservation of title, the claims are assigned to the amount equal to the value of our share in the total value. The anticipatory assignment also covers possible outstanding balances from a current account. The customer shall be entitled to collect the receivables.
4. As long as the customer meets his obligations to us, he shall be entitled to dispose of the goods subject to reservation of title in the normal course of business and under reservation of title, insofar as the claims according to 3 are transferred effectively. Extraordinary dispositions such as pledging, transfer of ownership by way of security and any assignments are inadmissible. The customer shall immediately notify us of seizures of the goods subject to reservation of title by third parties or assigned claims, particularly pledging.
5. In the event that the customer is in default of a due payment for the period exceeding one week or is subject to forfeiture of assets, in particular if he suspends payments, our claims fall due for immediate payment and any respite of payment is terminated. In this case, we shall be authorised to seize the goods subject to reservation of title and revoke the collection authorisation. The customer shall be obliged to return the goods to the exclusion of the rights of retention. The enforcement of the reservation of title as well as the pledging of the contract items by us do not constitute our withdrawal from the contract, unless we expressly declare this in written form. All costs of the return and the liquidation shall be borne by the customer; we shall be entitled to sale by private treaty. Upon our request, the customer shall immediately provide us with a list of the assigned claims according to 3 as well as all information and documents required for enforcing our rights; furthermore, he shall inform the debtors of the assignment.
6. We commit ourselves to release the securities at our own discretion, if the value of our securities exceeds the amount of our claims from the business relationship by more than 10%.
7. In case the reservation of title or the assignment is ineffective according to the legislation of the country in which the goods are located, the security that is closest to the reservation of title or the assignment in this country is considered as agreed. In case the cooperation of the customer is required, he shall perform all legal acts required to establish and maintain such rights.
§ 8 Notices of defects
1. The customer’s warranty claims assume that he has fulfilled his obligations to examine the goods and give timely notice of defects, as stipulated in § 377 HGB (German Commercial Code).
2. In the event that the goods are faulty, we shall be entitled to rectification either by eliminating the defects or delivering new faultless goods. In case of defect elimination, we shall be committed to bear all expenses, in particular transport, road, labour and material costs, insofar as they do not increase due to the fact that the goods have been taken to a place other than the place of performance.
3. If the rectification fails, the customer shall be entitled at his own discretion to either withdraw from the contract or demand reduction of the purchase price.
4. We shall be liable in accordance with the statutory provisions, insofar as the customer asserts claims for compensation based on intention or gross negligence, including intention or gross negligence of our representatives or subcontractors. If we cannot be blamed for an intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
5. We shall be liable in accordance with the statutory provisions in case of culpable infringement of an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
6. If the customer is entitled to compensation for damages instead of performance, our liability for damages shall be limited to the foreseeable, typically occurring damage.
7. The seller is not committed to provide warranty as long as the customer has not or not completely fulfilled his contractual obligations. The warranty obligation expires if the delivered goods have been modified, treated improperly or sold. No warranty is provided for seconds and special items.
8. Any complaints shall be excluded after the delivered goods have been cut to length or their processing has commenced.
9. Commercially approved or slight technically unavoidable deviations in quality, colour, width, weight, finishing or pattern may not be queried.
10. We assume no liability for defects which could have been avoided by proper further processing, such as e.g. multishuttle weaving or appropriate machine setting (yarns) or the use of appropriate tools and finishing methods (woven fabrics, knitted fabrics). No liability is assumed either for a possibly increased occurrence of non-prime goods primarily caused by an especially discerning fabric construction (yarns). Concerning all types of yarns, only deliveries with the same batch number and in order of the batch numbers may be processed. The seller reserves the right to deliver goods from different batches within one delivery quantity.
11. The liability because of culpable injury to life, body or health shall remain untouched; this also applies to the mandatory liability in accordance with the Product Liability Law.
12. Unless otherwise stipulated above, liability shall be excluded.
13. The limitation period for warranty claims is 12 months from the date on which the risk was transferred.
14. The limitation period in case of delivery recourse as stipulated in §§ 478, 479 BGB (German Civil Code) shall remain untouched; it is five years from the date on which the faulty goods were delivered.
§ 9 Overall liability
1. Liability for damages extending further than stipulated in § 8 shall be excluded, irrespective of the legal nature of the asserted claim. This particularly applies to claims for compensation arising from faults upon conclusion of the contract, other infringements of contractual obligations or tortious claims for the compensation of property damage as stipulated in § 823 BGB (German Civil Code).
2. Insofar as the liability for damages is excluded or limited against us, this shall also apply to the personal liability for damages of our employees, representatives and subcontractors.
§ 10 Place of jurisdiction - Place of performance - Applicable law
1. If the customer is a trader, the place of jurisdiction is the place of our business; however, we shall be entitled to take legal action against the customer at the court of his residence as well.
2. The legislation of the Federal Republic of Germany shall exclusively apply; the validity of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. In case of doubts, the German version shall be binding in case of multilingual texts of contract and documents; this shall in particular apply to these General Terms and Conditions of Business.
3. Unless stated otherwise in the order confirmation, the place of performance is the place of our business.
§ 11 Miscellaneous
1. The customer and the supplier may assign their contractual rights to third parties by mutual agreement only.
2. The possible ineffectiveness of parts of these provisions shall not affect the validity of the remaining contents. 3. The terms and conditions shall be applicable to all business transactions without special notice.