Terms and Conditions of Sale
Unless expressly agreed otherwise in writing, the following terms and conditions of sale shall apply. Additional covenants or amendments shall only be valid if confirmed by seller in writing. Differing conditions of purchase of buyer shall be excluded.
- Place of Performance:
The place of performance for all deliveries and services under the sales contract shall be the domicile of the seller.
- Tolerances, Quality:
Seller reserves the right to deliver goods with tolerances usual in trade as to width, design, weight, finishing as well as colour. Unless agreed upon otherwise – explicitly and in writing – the customary quality standards for imported goods shall be deemed to have been agreed.
Excess or short deliveries shall be admissible up to 5 %. If orders are confirmed by weight, the price per running meter indicated in the confirmation shall prevail.
The inspection and complaint obligation of the buyer is subject to §377 HGB (German Commercial Code). Seller does not assume any liability with respect to the way the goods turn out after they have been finished or processed. Complaints must be filed in writing with corresponding proof of documentation giving exact details of the claimed defects. Complaints should be settled amicably, wherever possible.
Unless stated otherwise, the contractually agreed date of shipment shall be understood to be from the country of manufacture. The delivery date shall be deemed to be the date of arrival or the release of the goods to the forwarding agent. Shipment or delivery may be effected up to 15 days earlier or later than contractually agreed. A specific date of arrival cannot be guaranteed. Seller shall be free to choose the means of transport of the goods, in one or more consignments, with or without transhipment, subject to the availability of loading space. The date of the bill of lading or consignment note shall be deemed to be the date of shipment. If buyer stipulates particular requirements concerning the port of shipment, choice of vessel or the like, he shall bear all risks and expenses which may result therefrom.
Dispositions concerning measurement, colour or design of the goods should be submitted at the conclusion of the contract. Delays in delivery due to a late disposition shall be at buyer’s own risk. In case of sales from a German finishing plant the customary times for subsequent delivery shall apply, subject to timely receipt of the unfinished goods.
- Interruption of Delivery, Price Adjustment:
Seller shall not assume any liability for the consequences of force majeure beyond the control of the seller, in particular (but not exclusively) natural catastrophes, war, civil war, epidemics, labour disputes, actions of government, substantial changes in customs duties, prices, expenses, fees as well as plant stoppages etc. arising without his fault. No claims for damages or guarantee claims can be derived therefrom. Late delivery, full or partial failure to deliver as a result of force majeure shall not constitute grounds for cancelling the contract. In such cases, seller shall be allowed to deliver the goods at a later date to be agreed upon, taking the duration of the disruption into account. If subsequent delivery is not possible, the contract shall be cancelled to the extent of the quantity affected by force majeure. If the consequences of force majeure in a substantial change in price-forming factors without the implementation of the agreement becoming impossible, the seller is entitled to adequate price adjustments at his own discretion subject to retention of the agreement.
- Expiry of Obligations, Security Deposit, Delay:
- a) Seller’s duty to deliver shall be subject to buyer’s absolute creditworthiness. In case of any reasonable doubt in this respect, seller shall be entitled – even after having assumed obligations – to ask for either a security deposit or advance payment (at seller’s option) or to rescind those parts of the contracts with buyer which have not been performed so far, without being liable for damages.
In addition, seller shall have the option to claim for immediate payment of or a security deposit in the amount of the purchasing price of the goods already delivered or services already rendered. Seller shall be entitled to fetch delivered goods still under retention of title without fixing a deadline. The cost of this procedure shall be borne by buyer, who shall be liable for a possibly reduced value of the goods or lost profit.
- b) Buyer shall be in default of payment without a reminder if he does not pay at the time of the due date of the purchase price. The statutory rule according to which the debtor shall be automatically in default 30 days after receipt of the invoice remains unaffected. If the buyer is in default, favorable payment conditions agreed upon before, if any, shall no longer apply.
- Retention of Title
- a) The delivered goods shall remain the property of seller until fully paid. The risk of damage to or loss of the goods after the transfer of actual possession to buyer shall be borne by buyer. Seller shall be entitled to enter the warehouse of buyer and/or all premises in which the goods are stored at any time for the purpose of inspecting or reclaiming his goods. Buyer may resell or process such goods in the ordinary course of business. However, he shall not have the right to pledge or transfer the ownership of the goods by way of security to the benefit of third parties without the consent of seller. If the goods are seized by third parties, buyer shall notify seller immediately.
- b) The following additional provision shall apply in the event of sale or processing and subsequent resale of goods sold to buyer:
- aa) Buyer's right to sell or to process and resell goods under retention of title in the ordinary course of business ends when buyer stops his payments or when an application is filed for the opening of insolvency proceedings against buyer. If allowed by the statutory provisions on insolvency, buyer shall be obliged to surrender the unprocessed goods under retention of title at seller's first request. Seller shall credit to buyer the proceeds which he obtains for returned unprocessed goods under retention of title by making the best possible discretionary use of such goods (art. 254 BGB (German Civil Code)). Revocation or demand for surrender of unprocessed goods under retention of title by seller shall not constitute a rescission of the purchase contract.
- bb) Buyer shall not be entitled to pledge goods under retention of title or assigned claims or transfer ownership to third parties by way of security.
- cc) If he processes goods under retention of title, the buyer shall not acquire ownership in the new product within the meaning of art. 950 BGB (German Civil Code). In such a case, processing shall be deemed performed by buyer for seller, without seller incurring any liability therefrom. If the goods under retention of title are processed, seller shall acquire a joint ownership in the new product in the ratio of the invoiced value of the goods under retention of title to the new product.
- dd) Buyer herewith assigns to seller the claim from the resale of the goods under retention of title also in the case and to the extent that such goods have been processed. Such assignment shall be limited to the amount of the invoiced value of the goods under retention of title which have been processed to form the new product.
- ee) Provided that buyer meets his payment obligations, seller will not collect the assigned claims. Buyer shall, however, notify the third-party debtors to seller and notify such third parties of the assignment of the claims. Buyer shall be entitled to collect the claims himself as long as he meets his payment obligations and does not receive other instructions from seller.
- ff) The retention of title shall continue to be effective even if individual claims of seller are
included in a current account and the balance of the account is drawn and recognized; unless the account is balanced.
- gg) Seller undertakes to release the collateral to which he is entitled under the above provisions at his own discretion to the extent that the value of such collateral exceeds by 10%, the value of the claims to be secured thereby taking into account the value added by buyer.
- hh) Seller shall be notified immediately of any pledging, indicating the holder of the pledge.
- ii) As soon as buyer stops his payments and immediately upon notification of such stoppage,
buyer shall be obliged to send seller a list of the goods subject to retention of title which are still available even if they have been processed, and a list of the claims against third-party debtors along with the credit notes already issued on the corresponding invoices.
- c) Should seller enter into contingent liabilities in buyer's interest (payment by cheque, bill of exchange) the extended retention of title shall continue to exist until seller is fully released from these liabilities.
Where goods are imported for the purpose of re-exporting, buyer must observe the relevant regulations and procedures. Immediately upon entering the contract, buyer shall be obliged, as necessary, to submit the undertaking to re-export to the Federal Office for Economic Affairs and Export Control (Federal Office for Trade and Industry), Postfach 5171, 65760 Eschborn, referring to this contract, and to provide evidence of re-export in due course. Seller cannot be held responsible for defaults resulting from late
fulfilment of obligations incumbent on buyer.
- Guarantee and liability
- a) The requirement for any guarantee rights of the buyer is the latter’s orderly fulfilment of all of the inspection and complaint obligations pursuant to § 377 HGB.
- b) In the case of defects in the goods, the buyer has the right to post-fulfilment in the form of elimination of faults or the supply of fault-free goods. If post-fulfilment fails, the buyer is entitled to reduce the purchase price or to withdraw from the agreement.
- c) In the case of intent or gross negligence of the seller or his representatives or vicarious agents, the seller is liable according to the legal stipulations; this also applies in the case of culpable infringement of substantial contractual obligations. Insofar as there is no deliberate violation of the agreement, the compensation liability of the seller is limited to the predictable, typically occurring damages.
- d) Liability due to culpable injury to life, limb or health as well as liability subject to the product liability act remain unaffected.
- e) Unless stated otherwise above, liability of the seller is excluded.
- Final Provisions
- a) If individual provisions of these terms and conditions of sale should be ineffective, the validity of all other provisions shall not be affected.
- b) All legal transactions and/or litigations between business parties shall be governed by the law of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) or of the provisions of possibly existing other international agreements on the regulation of international business operations shall be excluded.
- c) The place of jurisdiction for all litigations between the parties shall be seller's registered office. In case of buyer having his registered office in Germany, the agreement on the place of jurisdiction shall only be valid if a fully qualified merchant, a public corporation or special assets of the Federal Government is involved.