General Terms & Conditions
1.1 All good and services are supplied by us in accordance with the following terms and conditions of sale, delivery and payment. Customer terms and conditions of purchase or payment which are contrary or at variance to our terms and conditions are not recognized by us unless we give our written consent to the customer’s terms and conditions in individual cases. Our terms and conditions apply even if we carry out delivery to the customer without reservation in the knowledge of customer terms and conditions contrary or at variance to ours.
1.2 Our terms and conditions of business also apply only towards registered traders (Kaufleute)
Within the meaning of section 34 of the German Act Governing the law on General Terms and Conditions of Business.
1.3 Our Terms and Conditions of business also apply to all future transactions with the customer. This also applies to sales of travelling salesman’s merchandise.
2. TERMS AND CONDITIONS OF PAYMENT
2.1 The prices stated by us apply for the relevant order. Recorders constitute new orders.
2.2 The prices stated in our offers are ex works and subject to confirmation. They do not include freight, insurance, customs duty or value-added tax.
2.3 In the absence of an agreement to the contrary, our invoices are payable within 14 days from the invoice date with 2% cash discount or within 60 days net. Deduction of cash discount is only permitted in the case of timely payment.
2.4 Amounts below €50 are payable within 8 days net.
2.5 Bills of exchange are accepted only on the basis of exclusive agreement and only on account of payment, all discount charges and other bill costs being chargeable.
2.6 We are entitled to charge interests on outstanding amounts at a rate of 2% p.a. above the discount rate of the German Central Bank (Bundesbank) at the relevant time.
3. DELIVERY, TRANSFER OF RISK, DELIVERY TIME
3.1 Delivery is made “ex works” at the costs of customers. The risk of accidental damage or loss on dispatch is borne by the customers. This also applies in the case of dispatch of goods to a recipient designated by the customer and in the case of carriage-payed deliveries. The goods are insured by us against damage in transit. The insurance taken out by us does not mean that we undertake to bear the transportation risk. Goods returns are only insured if the customer uses the same method of dispatch as we used in forwarding the goods. The customer undertakes to observe the stipulated regulations when returning goods. The costs of transit insurance are borne by the customer. Section 4 of these general terms and conditions of business applies with regard to the transfer of risk and insurance cover for goods supplied for selection. Return consignments of such goods must be notified to us by at the latest the date of return.
3.2 We are entitled to make part deliveries to a reasonable extend.
3.3 The following events result in a reasonable extension of the delivery time to the extent that they hinder performance: circumstances of force majeure which arise after the contract is entered into or which through no fault of our own were unknown to us when the contract was entered into other exceptional events which were for us unforeseeable and unavoidable and which arise after the contract is entered into: subsequent strikes and lawful lockouts.
4. SUPPLEMENTARY REGULATION FOR SELECTION TRANSACTIONS
4.1 Our general terms and conditions of business also apply to selection transactions but subject to the special arrangements stipulated in this section.
4.2 Goods supplied to the customer at its request for selection are deemed to be finally purchased if and to the extent that we do not receive them back within the stipulated or otherwise agreed time.
4.3 The goods for selection have to be insured by the recipient for all risks including the risk of damage or loss without negligence.
4.4 If-before expiry of the period stated in the relevant selection advice note-goods for selection are used for display purposes or as travelling salesmen´s merchandise, given to third parties for selection or on a consignment basis or outside business hours, are not stored in the safe, then all risks including the risk of dam or loss without negligence are borne by the customer from this time. In such cases, the customer is obliged to arrange adequate insurance for these goods and in the case of damage or loss hereby already assigns to us as security all claims on the insurer which may thereby arise. We accept such assignment. Item 6.9 applies accordingly.
4.5 Returns of goods for selection are insured through us only if the customer returns the goods to us before expiry of the selection period using the same method of dispatch as we used in forwarding the goods. The customer undertakes to observe this regulation and, in the case of infringement, will be liable for any resulting damage or loss.
4.6 Return consignments must be notified to us by at the latest date of return.
5. COMPLAINS, WARRANTY AND LIABILITY
5.1 Discernible defects must be notified to us at the latest within one week after delivery of the goods at the place of destination.
5.2 In the case of justified complaints about defects, we have an obligation to the customer to carry out repairs or supply a replacement at our discretion. If the repairs or replacement are not successfully carried out, the customer is entitled to demand a reduction in the purchase price or rescission of the sale at its discretion.
6. RETENTION OF TITLE
6.1 Goods supplied by us remain our property until complete payment of all receivables relating to our business association, including all incidental receivables and complete encashment of bills and cheques. This applies even if the purchase price for specific goods consignments supplied by us has been paid.
In the case of current accounting, our retention of title as stipulated in the above provision applies as security for the balance receivable by us.
6.2 Goods subject to retention of title by us may only be sold by the customer in the normal course of business. Pledging or assignment of goods subject to retention of title is not permitted. If goods subject to retention of title are not jet paid or are sold by the customer to third parties, it must on its side agree retention of title with its customer in the case of credit transactions.
6.3 If goods subject to retention of title by us are sold other than for cash, the customer hereby already assigns to us as security its receivable for the purchase price from the purchaser in the amount of our invoice including value-added tax. We accept such assignment. The customer is until further notice authorised to collect the assigned receivable in a fiduciary capacity on our behalf for as long as it properly fulfills its payment obligations towards us. In the case of payment default by the customer, we are entitled to disclose the assignment and demand payment to us from third parties. This also applies in the case of stoppage of payments or application for or opening of insolvency proceedings (bankruptcy or composition). The customer must then on demand supply to us all documents and information required to establish claims. If the receivable resulting from resale of our goods is included by the customer in a real or so-called “unreal” current account relationship with its customers, it hereby already assigns to us as security – in the amount of the price charged by us to it for the goods subject to retention of title by us-its claims to the established and recognised balance in its favour and to any surplus existing on termination of the current account relationship.
6.4 a) Goods subject to retention of title by us may be processed or reworked by the customer in the normal course of business. Processing or rework is carried out on our behalf as manufacturer within the meaning of section 950 of the German Civil Code BGB without creating any obligation for us. We automatically acquire title to any new object created through processing or rework. If goods subject to retention of title by us are processed together with other goods which do not belong to us we acquire joint title to the new object in proportion to the value of goods subject to retention of title by us in comparison with the value of the other jointly processed goods at the time of processing. If, as the result of processing , our title should cease to exist and the customer become the owner, it is hereby already agreed that title will be passed back to us by the client at the moment it is required by the latter. If our goods are processed together with goods which do not belong to us and the customer becomes the owner, it´s hereby already agreed that the customer will transfer to us joint title in proportion to the value of our processed goods. The customer obliged to keep our property or joint property on our behalf without charge until further notice.
If, through combination, an object supplied by us becomes a major component of another primary object,it is agreed that joint title to the primary object will pass to us at the time of combination in proportion to the value of our object compared with the value of the primary object. Our joint property will be kept by our customer on our behalf without charge and with due care.
6.4 b) If, by prior agreement, goods subject to retention of title by us are resold on a credit basis, the customer hereby already assigns to us a security its receivable for the purchase price (or compensation claim) in the amount of our invoice value. If goods subject to retention of title by us are processed together with other goods which do not belong to us, the receivable for the purchase price (or compensation claim) is only assigned to us in advance in the amount of the invoice value of the jointly processed goods. If by force of law or by force of our terms and conditions of business, we acquire joint title in the case of combination with other objects, the customer-in the case of resale of the objects combined with each other-assigns to us in advance its receivable for the purchase price (or compensation claim)in the amount of the value of our object in the combination in accordance with our invoice. In other regards item 6.3 applies accordingly for assignment and collection.
6.5 Goods subject to retention of title by us must be insured by the customer at its own expense against theft, burglary, robbery, armed robbery, lire and water damage. The customer hereby already assigns to us as security all insurance claims with regard to goods subject to retention of title. We accept such assignment.
6.6 Attacks by third parties (eg attachment or confiscation) against goods supplied by us subject to retention of title or against claims assigned to us must be promptly countermaded by the customer with reference to our rights. In addition, the customer must notify us in writing about such attacks, and provide the documents required for intervention (eg copy of the attachment protocol).
6.7 The customer undertakes to leave our original labels/stone certificates on the goods until resale or, when using its own labels, to indicate by appropriate descriptions that the goods were originally supplied by us.
6.8 In the case of default with payment or other conduct by the customer in breach of contract, we are entitled at the expense of the customer to repossess goods subject to retention of title by us or to demand assignment of the customer`s claim for return of goods from third parties. Assertion of rights relating to retention of title or repossession of our goods by us ourselves does not constitute withdrawal from the contract.
6.9 We undertake that the securities due to us under the above provisions will be released by us to the extend that their realisable value exceeds the receivable secured by more than 20%.
7. CREDIT-RATING, RETURNS, ISSUE OF CREDIT NOTES
7.1 If, after the contract is entered into, the financial position of the customer should significantly deteriorate, for example as the result of bill protests or judicial execution measures, we are entitled-without prejudice to all other rights-to take the following actions. We have also the right to demand immediate payment as described in section b) if the customer is in arrears of more than five weeks in payment of at least 25% pf its total liabilities (principal claims not subject of defence).
a) To the extend that we have not yet made delivery, we are entitled to withdraw from these contracts if within a reasonable period of grace set by us the customer fails to provide adequate security or make counterperformance.
b) To the extend that we have already made delivery, we are we are entitled to declare that receivables not yet due, including those for which bills or cheques have been presented, are payable with immediate effect.
7.2 In the case of final return of goods as the result of payment difficulties or insolvency on the customer side, we reserve the right to make markdowns in accordance with:
a) the external condition of the goods at the time of return (eg for costs which may be required for freshening-up work or for relabeling costs in the case of original labels removed by the customer or labels which become damaged or unsightly during the storage period)
b) the reduction in value which has occurred in the time between supply and return as the result of fashion-related obsolescence or technical developments and progress.
This does not affect the customer`s right to produce proof that a markdown is not justified or is only justified to a substantially lesser extend.
8. DATA PROCESSING
8.1 We are entitled to process or cause to be processed all data with the meaning of the German Data Protection Law/BDSG in connection with the business association with the customer.
9. PLACE OF PERFORMANCE AND JURISDICTION, APPLICABLE LAW, INTRA-COMMUNITY PURCHASE
9.1 The place of performance of delivery and payment is for both parties exclusively our registered place of business.
9.2 The place of jurisdiction for all legal disputes arising from the contractual relationship or about its origin or effectiveness, including bill and cheque actions, is for both parties the location of our registered place of business in the case of customers registered in the Commercial Register as a commercial enterprise (Vollkaufmann) or also, at our discretion, the location of the customer`s reg offices. The agreement on election of place of jurisdiction also applies tow commercial customers registered in other countries.
9.3 Customers in the other EU member countries are obliged in the case of intra-community purchase from 1.1.1993 to compensate us for damage and loss which may be incurred by us.
a) as the result of tax offences by the customer itself.
b) as the result of false or incomplete information by the customer about its material circumstances with regard to taxation(eg with regard to the purchase threshold or through statement of an incorrect identification number).
9.4 The contractual relationship is governed exclusively for both parties by German law to the exclusion of the UN convention on Contracts for the International Sale of Goods.
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