GENERAL TERMS OF SALE AND DELIVERY
§ 1 Applicability
1. The following General Terms of Sale and Delivery shall apply as accepted and become a part of the contract as soon as the order is placed, whereas at the latest on receipt of the object of delivery.
2. Quotations and services shall be exclusively based on these General Terms of Sale and Delivery. Deviating general terms of the buyer, which we do not expressly accept in writing, shall not be binding on us, even if we do not expressly object to them. Our General Terms of Sale and Delivery shall also apply to all future business relationships without a repeated, explicit agreement.
3. Our General Terms of Sale and Delivery apply only in relation to merchants in the definition of Sec. 310 (1) BGB [German Civil Code].
4. Agreements deviating from these General Terms of Sale and Delivery shall be valid only if we have confirmed them in writing.
§ 2 Closing of the contract and changes to the contract
1. Our quotations are always subject to change. We expressly reserve prior sales of the sorts and quantities specified as being in stock.
2. If we enclose samples, designs or documents such as illustrations, drawings, specifications of weight and dimension in a quotation, these shall be relevant only as proximate indications, unless we refer to them as being binding. We reserve all property and copyrights on cost estimates, drawings and other documents. These documents must not be made accessible to third parties.
3. All contracts and obligations will become effective only by the written confirmation of the seller. If contracts are performed without written confirmation (e.g. for scheduling reasons, etc.), these contracts shall become effective on delivery in application of these General Terms and Conditions.
4. Additions or changes to the contract must be agreed in writing.
§ 3 Prices, payment
1. Unless our payment is determined in a fixed amount, the prices valid on the day of the delivery shall be decisive.
2. Prices are understood ex-factory with the value added tax charged in addition.
3. Incidental costs for packaging, transport, insurance and similar are not included in the prices.
4. We are authorised to demand payment of a minimum invoicing amount or surcharges for small shipments.
5. Unless separate payment conditions have been agreed, our invoices will be due for payment without deductions within 30 days from the invoice date.
6. If the buyer comes to be in arrears with payment, we will have the right to demand default interest in the amount of 8% above the base interest rate in the definition of Sec. 247 BGB; if we can prove a greater default damage, we shall be entitled to claim this damage.
7. If doubts as to the buyer’s ability to pay or credit rating should arise after acceptance of the order, the seller shall be entitled to demand either prepayment or a security deposit at its choice, prior to the delivery, or to withdraw from the contract and demand the refund of its expenses from the buyer.
8. The buyer shall have rights to offset payments only if its counterclaims have been found valid by final and absolute judgment, or if they are uncontested or acknowledged by us. Furthermore, the buyer is authorised to exercise a right to withholding only to the extent that its counterclaim is based on the same contractual relationship. Bills of exchange will be accepted on account of performance, solely based on separate agreements, without warranty for protest and timely presentation. Discount fees will be charged to the buyer.
§ 4 Delivery period
1. The delivery period shall begin upon the mailing of the order confirmation, whereas not before the provision of the documents, permits, and releases to be submitted by the buyer and not before receipt of the agreed prepayment if applicable.
2. A delivery date shall apply only as approximate value. If an agreed delivery date is exceeded by more than 14 days, the buyer shall be obligated to set a grace period of 4 weeks to the seller. The delivery period will be deemed adhered to if the object of delivery has left the factory or the notification of the readiness for shipment has been given by the end of the period.
3. Force majeure that has occurred at the seller or its upstream suppliers or other unusual events occurring at none of its fault, e.g. strikes, lockout, energy shortage, transport problems and similar, and the circumstance that, for reasons outside of its responsibility, the seller does not have raw materials and other supplies of any kind available, or not to the full extent, which are intended for the performance of the contract, such shall release it from the delivery obligation for the period of the duration of the disruption and to the extent of its effect. The buyer shall be given immediate notice thereof.
If the reason for the prevention causes that the delivery period is exceeded by more than 2 months, both Parties shall have the right to withdraw from the contract with regard to the quantity affected by the delivery disruption. Damage compensation claims and other claims of the buyer are excluded.
The aforementioned circumstances are also outside of the seller’s responsibility if they exist during an already present delay. The seller shall inform the buyer as soon as possible of the beginning and end of such obstructions in important cases.
4. If the buyer is in delay of acceptance or culpably breaches other duties to cooperate, we shall be entitled to request compensation for any damage resulting from this including any additional costs. Further claims remain reserved.
5. If the conditions of Section 4 are given, the risk of accidental loss or accidental deterioration of the object of purchase shall transfer to the buyer at the point in time when the latter is in delay with acceptance or in default of payment.
6. We shall be liable pursuant to the legal regulations, insofar as the underlying purchase agreement is a firm deal in the definition of Sec. 286 (2) no. 4 BGB or Sec. 376 HGB [German Commercial Code]. We shall also be liable pursuant to the legal regulations if the buyer, as a consequence of a delay in delivery caused by us, is entitled to claim that its interest in the further performance of the contract has been discontinued.
7. Furthermore, we shall also be liable pursuant to the legal regulations if a delay in delivery is due to an intentional or gross negligent breach of contract at our fault. If the delay in delivery is due to an intentional breach of contract at our fault, our liability for damage compensation shall be limited to the predictable, typically occurring damage.
8. We shall also be liable pursuant to the legal regulations if a delay in delivery is our fault due to a culpable breach of contract; in this event, liability for damage compensation shall be limited to the predictable, typically occurring damage.
9. Further legal claims and rights of the buyer remain reserved.
§ 5 Foreign trading transactions
The following applies to trading transactions:
1. Commercially customary clauses shall be interpreted according to the Incoterms rules. All fees, taxes and costs related to the contract shall be borne by the buyer. If it is agreed that the buyer bears customs duties and importation taxes of the country of destination, increases of such charges between the day of the order and the day of the delivery of the product shall be borne by the buyer.
2. If payment is agreed to be made in a currency other than euro, changes in the exchange rate of this currency to the euro for the benefit or at the expense of the buyer.
§ 6 Transfer of risk, acceptance
1. The risk shall transfer to the buyer at the latest upon the shipping of the items, notably even if partial deliveries are made or if the seller has assumed further performances, e.g. if shipping and handling or transport and setup. On the buyer’s request, the seller will insure the shipment at the buyer’s cost for theft, breakage, transport, fire and water damages, and for other insurable risks.
2. If the shipment is delayed due to circumstances that are within the buyer’s responsibility, the risk shall transfer to the buyer as of the date of the readiness for shipment. The seller, however, is obligated to conclude insurance policies requested by the buyer on request and at the cost of the buyer.
3. Notwithstanding the rights under § 8, delivered items shall also be accepted by the buyer if they have minor defects.
4. Partial deliveries are permissible.
§ 7 Reservation of title
1. We reserve the title to the items delivered by us (products subject to the reservation of title) up until the complete payment of the price and all other including future claims arising from the business relationship with the buyer.
2. Treatment and processing of the products subject to the reservation of title by the buyer shall be made free of charge for us, without any obligation arising from this for us. The new object shall become our property. In case our products are processed together with other products not belonging to the buyer, we shall acquire the co-ownership of the new object in proportion of the value of the products subject to the reservation of title relative to the value of the other products; in the case of combination, blending and mixing with other products, we shall acquire co-ownership according to the legal regulations. In the case that the buyer obtains sole ownership through combination, blending or mixing, it transfers the co-ownership to us on this day already in the proportion of the value of the products subject to the reservation of title relative to the value of the other products at the time of the combination, blending or mixing. In aforementioned cases, the buyer shall retain the object in our ownership or co-ownership, which is likewise a product subject to the reservation of title, in accordance with the following provisions.
3. The buyer assigns to us the claims arising from the resale of the products subject to the reservation of title on this day already in the amount of the value of the product subject to the reservation of title including all ancillary rights. The same applies if the products subject to the reservation of title are installed as an essential component on the property of a third party. If the products subject to the reservation of title are in our (co-)ownership, the receivables shall be assigned in the amount that equals the value of our share in the total value. The assignment in advance shall also extend to any receivable balances of current accounts. The buyer shall be authorised to collect the receivables.
4. For as long as the buyer fulfils its obligations to us, it shall be entitled to dispose of the products subject to the reservation of title in the course of ordinary business, insofar as the receivables transfer effectively pursuant to No. 3. Extraordinary dispositions such as pledges, transfers by way of security, and any assignments are impermissible. It shall be reported immediately if third parties attain control over the products subject to the reservation of title or assigned receivables, in particular in the case of attachments.
5. If the buyer comes be in delay with a payment owed for more than one week or if it suffers financial collapse, particularly if it discontinues payments, our receivables shall become due immediately and any deferral for payment shall end. In these cases, we shall have the right to take possession of the products subject to the reservation of title and revoke the authorisation for collection. The buyer is obligated to surrender the products subject to the reservation of title “to the exclusion of rights of withholding.” Assertion of the reservation of title and the attachment of the delivered items by us shall not be deemed a withdrawal from the contract, unless this is expressly declared in writing by us. All costs for the return and sale shall be borne by the buyer. We are authorised to make a private sale. On request, the buyer shall send us a list of the receivables assigned pursuant to No. 3, and all further information and documents required for the assertion of our rights, and notify the debtors of the assignment.
6. We undertake to release securities at our choice if the value of our securities exceeds the total of our receivables from the business relationship by more than 10%.
7. If the reservation of title or the assignment is not valid pursuant to the law of the country in which the product is located, the security coming closest in this country to the reservation of title or the assignment shall apply as agreed. If the cooperation of the buyer is required accordingly, it shall take all legal actions required for the establishment and preservation of such rights.
§ 8 Notices of defects
1. The buyer’s warranty rights require that it has duly fulfilled its obligations for inspection and notification of defects pursuant to Sec. 377 HGB [German Civil Code].
2. If there is a defect on the object of purchase, we shall have the choice of subsequent fulfilment through the correction of defects or delivery of a new item without defects. In the case of the correction of the defect, we shall be obligated to bear all expenses required for the purpose of correcting the defect, in particular transport, travel, work and material costs, insofar as these are not increased for the reason that the object of purchase has been transported to a place other than the place of fulfilment.
3. If subsequent fulfilment fails, buyer shall be entitled at its choice to withdraw from the contract or request a reduction of the price.
4. Our liability shall be determined according to the legal regulations if the buyer asserts damage compensation claims, which are based on intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents. If we are not accused of any intentional breach of contract, the liability for damage compensation shall be limited to the predictable, typically occurring damage.
5. We shall be liable pursuant to the legal regulations if we culpably breach an essential contractual duty; in this event, liability for damage compensation shall be limited to the predictable, typically occurring damage.
6. If the buyer is entitled to a claim for compensation of the damage in lieu of performance, our liability shall be limited to the predictable, typically occurring damage.
7. The seller is not obligated to perform the warranty for as long as the buyer has not met its contractual obligations or not to the full extent. The warranty obligation shall expire if the delivered product has been modified, treated improperly or sold. No warranty is extended for products of second choice and special offers.
8. Any claims of defect are excluded after the delivered product was cut to size or it was started with its processing otherwise.
9. Slight, technically unavoidable deviations in quality, colour, width, weight, equipment or design commonly occurring in retail do not qualify for complaints.
10. We do not accept any liability for defects that could have been avoided in proper further processing, e.g. multi-system weaving or appropriate machine settings (yarns) or use of suitable tools and finishing procedures (fabrics, knits). Any liability is also excluded for any potentially increased occurrence of non-OK merchandise that is decisively caused by a particularly critical merchandise structure (yarns). It applies to all other yarn types that only deliveries with the same area designation may be processed and only in the sequence of the area designation. The seller reserves the right to change the area within the quantities to be delivered.
11. Liability for culpable injury to life, body or health remains unaffected. This also applies to compulsory liability pursuant to the Product Liability Act.
12. Liability is excluded, unless defined otherwise in the foregoing.
13. The limitation period for claims of defects shall be 12 months from the date of the transfer of risk.
14. The limitation period in the event of delivery recourse pursuant to Sec. 478 and Sec 479 BGB remains unaffected. It is five years, calculated from the delivery of the defective item.
§ 9 Overall liability
1. Any liability for damage compensation to a further extent than provided for in § 8 shall be excluded “regardless of the legal nature of the claim asserted.” This applies in particular to damage compensation claims resulting from fault in the conclusion of the contract, fault for other breaches of duty or tort claims for the compensation of property damages according to § 823 BGB.
2. Insofar as the liability for damage compensation in relation to us is excluded or limited, this shall also apply with regard to the personal liability for damage compensation of our employees, representatives and vicarious agents.
§ 10 Place of jurisdiction, place of fulfilment, applicable law
1. If the buyer is a merchant, our permanent place of business is the place of jurisdiction. However, we are entitled to sue the buyer also in the court of residence.
2. The law of the Federal Republic of Germany applies. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. In case of multi-lingual contract texts and documents, the German version shall be binding in cases of doubt. This applies in particular also to these General Terms and Conditions.
3. Unless the order confirmation states otherwise, our permanent place of business is the place of fulfilment.
§ 11 Miscellaneous
1. The buyer and seller may transfer their contractual rights to third parties only in mutual agreement.
2. Any invalidity of a part of these terms shall not have any effect on the validity of the remaining content.
3. The terms shall apply to all business without separate notice.