TERMS OF TRADE
Unless explicitly agreed otherwise in writing the following conditions of sale shall apply. Supplements or amendments shall not apply unless confirmed by the seller in writing. Any conditions of purchase of the buyer that deviate from these conditions shall be excluded.
- Place of Performance
The place of performance for all services under the supply agreement shall be the place where the seller has its commercial establishment.
- Allowable Variations, Quality
With regard to details on width, construction, weight and finishing as well as color the right to allowable variations customary in the trade shall be reserved. Unless explicitly agreed otherwise in writing, the standard of good merchantable quality of imported goods shall be deemed as agreed upon.
An excess or short delivery of up to 5% shall be admissible. If an order is confirmed according to weight, the simultaneously indicated price per running meter shall be authoritative.
Complaints may only be made regarding merchandise that has not yet undergone processing within ten days after the merchandise has been received. The seller shall assume no responsibility whatsoever with regard to the loss of the merchandise after it has been finished or processed. Complaints shall be submitted in writing with supporting evidence and documentation to indicate the defects that are being objected to. All complaints are to be settled on an amicable basis, if possible.
The contractually agreed shipment date shall be deemed to be from the country of production, unless otherwise stipulated. The date on which the merchandise reaches the customer or is released by the forwarder shall be deemed to be the delivery date. A period of 15 days for an earlier or later shipment or delivery other than contractually agreed shall be admissible. A specified arrival date cannot be guaranteed. Transport shall be effected at the seller’s discretion in one or more shipments with or without reloading provided cargo space is available on time. The date of the bill of lading or the consignment note shall be deemed to be the date of shipment. In the event the buyer gives certain instructions with regard to the port of shipment, the choice of steamer or otherwise, the ensuing risks and costs shall be borne by the buyer. The required size, color and design classifications should be available at the time the order is completed. The buyer shall bear the risk of delayed delivery that is caused by a delayed classification. For sales from the German finishing establishment, the term of subsequent delivery customary in the trade shall apply with the proviso of the punctual arrival of the raw material.
- Disruption of Delivery, Price Adjustment
The seller may not be held responsible for the consequences of force majeure, industrial action, official measures and plant interruptions not caused by the seller etc. No claims for damages may be asserted as a result of this. Delayed deliveries, non-delivery of all or part of the merchandise due to force majeure and/or the above-mentioned circumstances shall not entitle the buyer to cancel the agreement. In this case, the seller shall be granted the possibility of subsequent delivery at a later date to be agreed upon, for which the duration of the hindrance is to be taken into account. In case subsequent delivery is not possible, the agreement shall be cancelled within the scope of the amount affected by force majeure and/or the circumstances described above. Any events that are beyond the control of the seller shall be deemed force majeure. This shall also include a substantial change of customs duties, prices, incidental expenses, fees etc. due to the amendment of laws and/or official measures. To this extent, the seller shall be entitled to reasonable price adjustments.
- Expiry of Obligations, Securities, Default
Our obligation to deliver shall be based on the unconditional creditworthiness of the buyer. In case reasonable doubts arise in this respect even after our assumption of obligations, we shall be entitled to request at our discretion the provision of security or advance payment or to rescind the part of our agreements that has not been fulfilled without being liable for damages. Furthermore, we shall be entitled to request at our discretion immediate payment or the provision of security in the amount of the purchase price for services already rendered. In addition, any merchandise that has been delivered but is still subject to retention of title may be retrieved by us without notice. Any costs ensuing therefrom shall be borne by the buyer. The buyer shall be liable for any reduced value and lost profit.
- The buyer shall be in default if payment is not effected following a reminder sent after the purchase price has become due. Notwithstanding the above, the buyer shall be in default if it does not effect payment on the calendar date set out in the agreement. The statutory provision according to which the debtor will be in default automatically 30 days after having received an invoice shall not be affected thereby. Any agreed payment privileges shall become void if the buyer is in default. Subject to higher damage caused by the default, we shall be entitled to invoice interest on arrears at least 5 % above the respective base rate plus statutory value added tax.
Retention of Title
The seller shall remain the owner of the delivered merchandise until payment has been made. The buyer shall bear the risk of damage or loss of the merchandise after the transfer of possession to the buyer. The seller shall be entitled to enter the buyer’s store rooms and/or all premises in which the merchandise is kept at any time for the purpose of inspecting the merchandise or for its recovery. The buyer may sell the merchandise or process it within the framework of the ordinary course of business. Any pledging or transfer by way of security of the merchandise to the benefit of third parties without the seller’s consent shall be excluded. In case the merchandise is attached by third parties the buyer shall notify the seller thereof immediately.
- In case the merchandise is processed and then sold the following shall apply:
- The delivered merchandise shall remain in the seller’s ownership until the seller’s claims vis-à-vis the buyer have been fully settled.
- The buyer’s authority to process and sell merchandise subject to retention of title within the framework of the ordinary course of business shall end if the buyer suspends its payments or an application to institute insolvency proceedings on the buyer’s assets is filed. To the extent this is admissible according to the German Insolvency Act, the buyer shall be entitled to return the unprocessed merchandise subject to retention of title upon the seller’s first request. The seller shall credit to the buyer the proceeds for unprocessed merchandise subject to retention of title that it has taken back and has achieved under optimal use (s. 254 German Civil Code – BGB). A revocation or a demand for return of the unprocessed merchandise subject to retention of title shall not constitute a rescission of the purchase agreement.
- It shall not be admissible to pledge or transfer the merchandise subject to retention of title or the assigned claims by way of security.
- The buyer shall not acquire ownership in the new thing pursuant to s. 950 German Civil Code (BGB) by processing the merchandise subject to retention of title. The processing shall be effected by the buyer for the seller without liabilities being created for the seller thereof. If the merchandise subject to retention of title is processed, the seller shall acquire co-ownership in the new thing in the amount of the invoice value of the merchandise subject to retention of title that has been processed into the new thing.
- The buyer shall thus assign the claim under a resale of the merchandise subject to retention of title to the seller, also to the extent the merchandise has been processed. The assignment shall be limited to the amount of the invoice value of the merchandise subject to retention of title that has been processed into the new thing.
The seller shall not collect the assigned claims as long as the buyer meets its payment obligations. The buyer shall however be obliged to abandon the third party debtors upon the seller’s request and notify those debtors of the assignment. The buyer shall be entitled to collect the claims itself as long as it meets its payment obligations and is not otherwise instructed by the seller.
- The retention of title shall also remain effective if individual claims of the seller are included in a current account and the balance has been drawn and recognized, unless the account is balanced.
- The seller undertakes to release the provisions of security it is entitled to under the above provisions at its discretion to the extent their value exceeds the claims to be secured by 10 %, taking into account the value added by the buyer.
- The seller shall be notified immediately of pledges indicating the pledgee.
- The buyer shall be obliged to send to the seller, as soon as the buyer has suspended payment and immediately after notifying the seller of the suspension of payments, a list of the still existing merchandise for which title is retained, also to the extent it has been processed, and a list of claims to third party debtors together with credit notes.
- Should the seller enter into contingent liabilities in the buyer’s interest (payment by cheque, bill of exchange), the extended and broadened retention of title shall remain effective until the seller is released from such liabilities.
Unless otherwise agreed, the import license shall be provided by the seller. In case imported fabric is to be re-exported, the buyer shall comply with the relevant regulations and formalities. It shall be incumbent upon the buyer to submit immediately after the completion of the order the re-export obligation to the Federal Office of Economics and Export Control (BAFA), Postfach 5171, D-65760 Eschborn, Germany, with reference to this agreement and to furnish evidence of such re-export in due course. The seller may not be held responsible for delays that result from the buyer having met its obligations belatedly.
- Final Provisions
In case individual provisions of these terms of trade are invalid, the validity of the remaining provisions shall not be affected thereby.b) The law of the Federal Republic of Germany shall apply to all legal transactions and/or legal disputes between the parties. The applicability of the UN Convention on the International Sale of Goods (CISG) as well as the material provisions of any other international agreements on the regulation of international business transactions shall be excluded.c) Place of jurisdiction for all disputes of the parties shall be the place where the seller has its registered place of business. If the buyer has its business in Germany, the provision on the place of jurisdiction shall only apply to the extent the buyer is a fully qualified merchant, a legal person under public law or a special fund under public law.