Section 1 Scope of validity, entry into contract
1. Unless agreed otherwise in writing, these terms and conditions shall govern all business relations with the other contracting party (buyer). Terms and conditions to the contrary will not be accepted, except if we explicitly agree to their validity in writing. The transfer of rights and obligations arising for the other contracting party from the contract concluded with us shall require our written approval in order to be effective.
2. Offers from us (seller) shall always be subject to change. To the extent that the offer is submitted by the other contracting party (buyer), such offer shall be accepted by a written order confirmation from us. Further, any and all agreements intended to have a binding effect on us shall require our written order confirmation so as to be effective. The order confirmation shall be authoritative as regards the scope and subject matter of the order. Changes of design or form resulting from improved technology or requirements imposed by law shall invariably remain reserved during the period of delivery, provided that the item deliverable is not substantially changed and that such changes are reasonably acceptable to the other contracting party. Changes of the order scope within a +/- 5% limit shall be permissible.
3. If the other contracting party places the order online/ via the internet, we undertake to accept the order on the conditions applicable on the date of the order, as shown on our website. If there are typing errors or arithmetic mistakes on our website, we will be entitled to cancellation. Whenever the other contracting party orders the merchandise electronically we will promptly acknowledge receipt of the order. Such acknowledgment of receipt shall not represent a binding acceptance of the order as yet. Acknowledgment of receipt may be connected with the declaration of acceptance. The contract shall be concluded with the reservation that we are supplied with the merchandise by our own suppliers correctly and in due course. This shall only apply if we are not answerable for non-delivery, in particular if we have agreed on a congruent cover business with our supplier. The other contracting party shall be informed without delay whenever we are unable to deliver. Consideration paid shall be promptly refunded. If the other contracting party orders the merchandise by electronic means, the text of the contract will be stored by us and be sent to the other contracting party by e-mail upon request along with the present General Terms and Conditions of Business.
Section 2 Place of performance, delivery
1. Place of performance for all services specified in the delivery contract shall be the place of our trading establishment, Munich.
2. The merchandise shall be delivered ex Munich warehouse. The cost of forwarding shall be borne by buyer. Buyer may determine the forwarding agent. The merchandise shall be sent uninsured. An advice note may be agreed.
3. If delivery is effected from an external warehouse, it will be possible to invoice a lump sum warehouse markup.
4. In case of special packaging the cost of packaging shall be borne by buyer.
5. If the merchandise is not accepted in due course at buyer’s fault, seller shall have the right to elect, after setting a 7-day period of grace, either to invoice the arrears or to rescind the contract or to claim damages.
Section 3 Content of the contract
1. Delivery shall be effected on certain dates (any particular business day or calendar week). All sales shall exclusively be based on the contractually agreed quantities, goods, qualities and fixed prices by which both parties are bound. Commission business shall not be allowed.
2. Block orders shall be permissible, but must be limited in time when the contract is concluded. The period of acceptance must not exceed 12 months.
Section 4 Interruption of delivery
1. In case of force majeure, industrial action and other disruptions of business having taken or expected to take longer than one week the deadlines fixed for delivery and acceptance shall automatically be extended by the duration of such obstruction, at most, however, by 5 weeks, plus time allowed for later delivery. Such extension shall only take effect if the other party is promptly informed about the reason for the obstruction as soon as it possible to foresee that the aforementioned deadlines cannot be met.
2. In the event that the other contracting party is not promptly advised upon its request that the merchandise cannot be delivered and accepted in due course and that the obstruction takes longer than 5 weeks, the other contracting party may immediately rescind the contract.
3. Claims for damages shall be ruled out if the respective contracting party has fulfilled its obligations pursuant to subsections 1-2.
Section 5 Time allowed for later delivery
1. After the deadline fixed for delivery has expired, an 18-day period allowed for later delivery shall automatically begin to run. After the period allowed for later delivery has expired, the contract shall be deemed to be rescinded, claims for damages being ruled out. Contract rescission according so subsection 1 sentence 2 shall not take effect if buyer advises seller during the period granted for later delivery of buyer’s insistence on the performance of the contract. However, seller will be released from its obligation to deliver, if buyer fails to state upon a relevant query from seller whether buyer insists on contract performance within the period allowed for later delivery.
2. Fixed-date deals shall not be made. However, if the parties explicitly agree in any individual case that the merchandise is intended for a particular campaign, it will be possible to agree on a fixed date for delivery without time allowed for later delivery. If such a deadline is exceeded, buyer may claim a refund of special expenses associated with the merchandise ordered, at most however at the level of the purchase price of the merchandise ordered. More extensive claims shall be ruled out. In the event that the campaign merchandise is found to be defective, buyer may only reduce the purchase price or rescind the contract.
3. If buyer requests compensation for damages in lieu of delivery, buyer must grant seller a 4-week period, warning seller of buyer’s refusal to perform the contract after expiry of this period. Such a period shall be counted from the date on which buyer’s notice by registered letter is mailed. If the event described in subsection 1 sentence 2 occurs, this clause shall apply in lieu of the rescission referred to therein, but only on the condition that seller has received buyer’s notice, with a time limit set, during the period allowed for later delivery.
4. The time allowed for later delivery of merchandise ready for dispatch and NOS (“Never-out-of-Stock”) merchandise shall be 5 business days. In case of non-delivery buyer shall be informed without delay. Otherwise, the provisions of subsections 1 and 3 shall apply.
5. Buyer’s claims on account of delayed delivery shall be ruled out before the period allowed for later delivery has expired.
Section 6 Complaints
1. Complaints shall be sent to seller within ten days of receipt of the merchandise.
2. Complaints of apparent defects shall be excluded after having begun to cut out or to otherwise process the merchandise delivered.
3. Minor, technically unavoidable deviations in quality, colour, width, weight, accessories or design may not be complained of. This shall also apply to deviations that accord with standard commercial practice.
4. In case of justified complaints concerning apparent defects seller shall have the right of subsequent improvement or substitute delivery free from defects within 14 weeks after taking back the merchandise. In this case seller shall bear freightage. If subsequent improvement fails, buyer shall only be entitled to reduce the purchase price or rescind the contract. Apparent defects shall be reported within 10 days of receipt of the merchandise.
5. Upon expiry of the 14-week period mentioned in subsection 4, buyer may only reduce the purchase price or rescind the contract.
6. Hidden defects shall be reported by buyer to seller promptly after detecting them. Buyer may only reduce the purchase price on account of defects reported in due course.
Section 7 Payment
1. Invoices shall be made out as per the date on which the merchandise is delivered and/or made available. Any extension of the due date (date of crediting to seller’s account) shall be generally ruled out.
2. Invoices shall be immediately due for payment. Discounts will not be granted. As regards the occurrence and consequences of default, the relevant statutory provisions shall apply.
3. If seller accepts bills of exchange in lieu of cash, cheque or bank transfer, seller will, in accepting the bill after the net payment deadline, charge a 1% markup on the value of the bill as from the 61st day after invoicing and dispatch of the merchandise.
4. Prior interest will not be granted in any case.
5. Payments shall always be applied towards the oldest debt item due, plus default interest accrued thereon.
6. The postal exit stamp shall in any case be decisive for the purpose of determining when payment was processed. In case of bank transfer the day before payment is credited by seller’s bank shall be deemed to be the date of payment.
Section 8 Payment after due date
1. If payment is made after due date, interest at a level of 8% above the applicable base interest rate of the European Central Bank will be charged.
2. Before invoiced amounts due, including interest, are paid in full, seller will not be obligated to effect any additional delivery under any current contract. The right to assert default loss shall remain reserved.
3. If buyer defaults on payment or if buyer threatens to become insolvent or buyer’s financial situation otherwise deteriorates substantially, seller may, after setting a 12-day period of grace for deliveries under any current contract still outstanding and by waiving the payment deadline, demand payment in cash prior to delivery or rescind the contract or assert claims for damages.
Section 9 Mode of payment
1. Setoff against and retention of invoiced amounts due shall not be permissible, unless relevant claims are undisputed or finally established by a court of law. This shall likewise apply if seller discontinues payment. Other deductions (e.g. postage) shall be impermissible.
2. Bills of exchange, if acknowledged for payment purposes, will only be accepted against a refund of expenses. Bills of exchange and acceptances thereof with a term in excess of three months will not be accepted.
Section 10 Reservation of title/copyrights
1. The merchandise shall remain seller’s property until all trade accounts receivable from the business relationship as a whole, including collateral claims, claims for damages and the honouring of cheques and bills, have been paid and satisfied. Such reservation of title shall even continue to exist if individual claims of seller are included in a current account and the balance is drawn up and acknowledged.
2. If buyer combines, mixes or processes the merchandise subject to reservation of title (“subject merchandise”) with a new movable thing, this shall be effected for seller, with no obligations arising for seller therefrom. By such combination, mixing or processing buyer will not acquire title to the new thing pursuant to sections 947 et seq. BGB (Civil Code). In the event that the merchandise is combined, mixed and processed with things not owned by seller, seller shall acquire joint title to the new thing at the ratio of the invoiced value of seller’s subject merchandise compared to the total value.
3. If the business between seller and buyer is transacted via a central regulatory body, which assumes del credere, seller will transfer title to the central regulatory body when dispatching the merchandise, doing so on the condition precedent that the purchase price is paid by the central regulator. Buyer will not be released before payment is made by the central regulator.
4. Buyer will only be entitled to resale or further processing subject to the conditions set forth below.
5. Buyer may sell or process the subject merchandise only in the proper course of business and on the condition that buyer’s financial situation does not substantially deteriorate.
6a. Buyer hereby assigns to seller the claim, including all collateral rights, arising from the resale of the subject merchandise, inclusive of claims from the balance of accounts, if any.
6b. If the merchandise is combined or mixed or processed and seller acquires joint title thereto at the level of seller’s invoiced value, seller shall be entitled to the purchase price receivable at the ratio reflecting the value of seller’s rights to the merchandise.
6c. If buyer has sold the claim under a genuine factoring arrangement, buyer shall assign to seller the receivables due from the factor in lieu of such claim and shall pass on to seller the proceeds from sale at the ratio reflecting the value of seller’s rights to the merchandise. Buyer shall be under the obligation to disclose the assignment to the factor, if buyer has been in arrears with payment of an invoice for more than 10 days or if buyer’s financial situation deteriorates substantially. Seller accepts such assignment.
7. As long as buyer fulfils its payment obligations, buyer shall be authorised to collect the claims assigned. Such authority to collect shall expire in the event that the buyer defaults on payment or that buyer’s financial situation deteriorates substantially. In this case seller is hereby authorised by buyer to inform the recipients of the assignment and to collect the claims on its own. For asserting the claims assigned buyer must furnish the necessary information and permit verification of such information. In particular, buyer shall provide seller upon request with an exact list of the receivables due to seller, indicating the names and addresses of the recipients, the amount of the individual claims, dates of invoices, etc.
8. If the value of seller’s collateral security exceeds all of its receivables by more than 10%, seller shall be obligated to release an equivalent amount of collateral security of its choice upon the request of buyer.
9. Pledges or assignments as security of the subject merchandise and/or the claims assigned shall be impermissible. Seller shall be immediately informed of any attachments, including the name of the creditor under the order of attachment.
10. If seller takes back the item delivered by exercising its right to reservation of title, this will only constitute rescission of the contract if seller makes an explicit declaration to this effect. Seller may satisfy itself out of the subject merchandise taken back by direct selling.
11. Buyer shall store the subject merchandise for seller at no charge. Buyer shall insure it with customary coverage against usual risks, such as, for example, fire, theft and water. Buyer hereby assigns to seller, at the level of the invoiced value of the merchandise, the claims to compensation arising for buyer from damage of the aforementioned type against the insurance companies or any other parties acting under their orders. Seller accepts such assignment.
12. Any and all claims and rights arising from reservation of title to all special forms specified in these Terms and conditions shall continue to exist until seller is fully released from contingent liabilities (cheque-bill) which seller accepted in the interest of buyer. In the case referred to in sentence 1 buyer shall be generally permitted to engage in factoring in respect of receivables outstanding. However, buyer shall inform seller before entering into contingent liabilities.
13. Copyrights to the creative design of merchandise designed and sold by us shall pass to buyer only to the extent required for the appropriate use of the merchandise (transfer tied to purpose). Any use of works designed by us going beyond this shall be impermissible.
14. Mere design services performed by us, which are not visually reflected in the deliverables, must not be passed on to third parties. Any use of design services for purposes of production or reproduction of any type shall likewise be impermissible, unless we consent to this writing. Such consent may already be granted in the order confirmation.
Section 11 Applicable law
The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 shall be excluded. Place of jurisdiction (also for legal action concerning bills of exchange and cheques) shall be Munich
(GTC as per March 2008)