General terms and conditions
General Terms and Conditions of Sale and Delivery of van Clewe Sun Protection GmbH
I. Scope of Validity
The following Terms and Conditions of Sale and Delivery (the "Terms and Conditions") shall apply to all sales and all deliveries of the Seller. Any exception herefrom shall require a written agreement to that effect between the Seller and Buyer. General terms and conditions of business of the Buyer shall not apply even if application of them is not expressly rejected by the Seller.
II. Offers and Conclusion of Contracts
Offers of the Seller are without engagement. Contracts shall become binding on the Seller only through the Seller's written confirmation or delivery of the goods by the Seller. In this regard, the moment at which the goods are made ready for dispatch on the Seller's premises shall be deemed the time of delivery. Invoices issued by the Seller shall be tantamount to a written confirmation.
Information and understandings provided or made over the telephone or by email shall only become binding on the Seller if and when confirmed in writing by the Seller.
Documents and data appurtenant to an offer and relating to sizes, weights or dimensions as well as illustrations shall be deemed only an approximate representation of the item of sale and shall not be deemed quality descriptions. Samples may deviate in respect of all characteristics from the actual item of sale.
Prices are subject to the addition of value added tax at the rate in force at the time of issue of invoice and include packing but not postage/freightage or insurance.
Cheques will be accepted by the Seller only on account of payment. Payment shall be deemed to have been properly effected only when the amount is credited to the Seller's account.
The Buyer may make offset only with such of his own claims as are undisputed or have been finally and absolutely established at law. All other offset is barred.
The Buyer may claim no right of withholding in respect of his own counterclaims which are disputed and have not been finally and absolutely established at law, except where such counterclaim is based on one and the same contractual relationship.
The purchase price is due and payable on issue of invoice. The invoice will be issued on the day of readiness of the goods for dispatch.
For full payment of the invoice amount within a period of 10 days, the Seller grants 2 % cash discount, otherwise it’s 30 days net, unless agreements specifying otherwise exist or are made.
Should the Buyer fail to make payment within 30 days from date of invoice, he shall have a duty (independently of the occurrence of default) to pay interest to the Seller on the whole of the outstanding claim in an amount of 5 percentage points above the base interest rate starting from the 31st day after issue of invoice.
All payments will be credited towards the oldest outstanding invoice and any interest payable thereon.
Outdoor personnel of the Seller are not authorised to receive payments.
The Seller shall have the right pursuant to Art. 321 BGB [German Civil Code] to make all liabilities arising from an ongoing business relationship with the Buyer due for immediate payment if the Buyer has not settled a purchase price claim within 30 days from date of invoice. The same shall also apply should any circumstances become apparent after conclusion of a contract which indicate a material deterioration in the Buyer's ability to pay.
The Seller shall have the right to increase the price if goods have not been delivered within four months from conclusion of a contract. The foregoing period shall be reduced to six weeks in the case of Buyers who fall within the category of persons referred to in Art. 310 Clause 1 Sentence 1 BGB. Such increase may only be made within the scope and by the percentage amount in which the Seller's own purchasing costs have also increased.
Delivery times or periods shall only be firm if they have been confirmed as such by the Seller in writing.
Failure by the Seller to deliver within a firm delivery period or by a firm delivery date shall not release the Buyer from his duty to allow the Seller a reasonable additional time for delivery if the Buyer wishes to derive any rights from such failure to deliver on time. The additional time allowed must be at least 10 calendar days.
A delivery time or period shall be extended in the case of circumstance for which the Seller is not responsible and which demonstrably have a considerable effect on the Seller's ability to perform. This shall also apply where suppliers of the Seller or their sub-suppliers are affected by such circumstances. Towards persons who do not fall within the category of those referred to in Art. 310 Clause 1 Sentence 1 BGB, however, this shall only be valid up to a period of two weeks and only in the event that the Seller has concluded a contract for purchase of the goods.
The Seller shall have a duty to notify the Buyer as soon as possible of the start and end of such impediments to delivery and to state whether delivery will be effected within a reasonable period of time. If delivery within a reasonable period of time is not possible, both parties shall have the right to repudiate the contract. Should the Seller fail to make any statement as to whether delivery will be effected within a reasonable period of time, the Buyer shall also have the right to repudiate. Payments or other performance already made by the Buyer shall be refunded by the Seller without delay.
Delivery times shall be extended by any period during which the Buyer fails to meet his obligations, regardless of which contract the obligations have arisen under.
The Seller shall have the right to make part-deliveries, provided this would not be unreasonable for the Buyer.
V. Delay in Delivery
Should the Seller fall into delay with delivery through its own fault, liability shall nevertheless be excluded in the case of negligence of minor or average nature. Should the delay be due to the Seller having culpably breached a material contractual duty, this exclusion of liability shall not apply.
Liability shall in all cases be limited to the foreseeable loss or damage typical for a contract of the kind in question; all other claims of the Buyer to compensation or damages in such cases of delayed delivery shall be barred.
Should the Buyer be able to show that he has suffered loss as a result of the delay, he may claim compensation from the Seller in an amount of at most 20 % of the price of the goods which were subject to delay in delivery by the Seller.
Provided nothing has been agreed to the contrary, the route and mode of shipment shall be of the Seller's choice. On the Buyer's request, the goods will be dispatched with a carrier named by the Buyer at the Buyer's expense. On the Buyer's request, the goods will be insured at the Buyer's expense.
The risk of loss of the goods shall pass to the Buyer on the goods' leaving the Seller's warehouse for purpose of shipment.
VII. Impossibility of Delivery
Should it emerge that delivery is impossible, the Seller shall have the right to repudiate the contract. The Seller shall advise the Buyer without delay that delivery is not possible and therefore a case of impossibility has occurred. The Seller shall have a duty to return without delay any payments or other performance already made by the Buyer. A case of impossibility shall also be deemed to have occurred if the goods concerned cannot be procured at reasonable prices. In this context, prices shall be deemed unreasonable if they are higher than the Seller's selling prices.
VIII. Reservation of Title
The Seller reserves title to the goods until the purchase price therefor has been paid in full. In the case of goods purchased by the Buyer within the scope of his business activity, the Seller reserves title to the goods until all claims of the Seller against the Buyer have been settled.
Should the Buyer commit a breach of any material contractual duties, the Seller shall have the right, after giving due warning, to recover possession of the goods. Material contractual duties shall include in particular, though not be limited to, the duty to pay in a timely manner.
The Buyer shall have the right to resell the goods in the ordinary course of his business, whereby the Buyer hereby already assigns to the Seller all claims on the Buyer's customers arising from sale to them of the goods. This shall also apply to goods which have been processed. If the goods are resold together with other goods, the Buyer assigns his claim to the selling price to the Seller in the amount of the delivery price of the goods supplied by the Seller. The Seller hereby accepts the aforesaid assignments.
The Buyer shall have the right, until further notice by the Seller, to collect the claims against his customers. The Seller may revoke the right to collect in the event that the Buyer should fail to meet his payment obligations in the proper manner.
The Seller may at any time during the reservation of title require the Buyer to provide the Seller with particulars of his customers and the claims existing against them.
After revocation as aforesaid, the Seller shall have the right to notify the customers of the assignment of claims and to collect the claims in its own name.
The right of resale in the ordinary course of business shall also end in the event of filing of a petition for bankruptcy in respect of the Buyer.
The Buyer shall have a duty on termination of the right of resale in the ordinary course of business to furnish the Seller without delay with a list of the goods which are available and which are subject to the Seller's reservation of title ("reserved goods") as well as a list of the claims assigned in advance together with the invoice addresses. Irrespective of this, the Seller shall have the right at any time to review the stocks of reserved goods and the assigned claims.
The Buyer shall have a duty on termination of the right of resale in the ordinary course of business to surrender the goods immediately to the Seller.
Should the Buyer fail to fulfil his contractual duties towards the Seller, the Seller shall have the right, without implying any repudiation of the purchase contract and without the need to allow any additional time, to demand surrender and release of the reserved goods. In the event of realisation of the goods, the Seller shall be under no obligation to abide by the regulations pertaining to the realisation of distrained goods set forth in the BGB.
The Buyer is prohibited from pledging reserved goods or from assigning them by way of security to any third party.
Any processing of reserved goods shall be deemed done on the Seller's behalf within the meaning of Art. 950 BGB, without any obligations arising for the Seller as a result of such processing. In the case of processing of reserved goods with other goods, the Seller shall acquire co-title in the same proportion as that between the respective values of the goods concerned; or in the case of processing of reserved goods with goods belonging to the Buyer, the Seller shall have sole title to the goods resulting from such processing.
The Seller undertakes to release any securities exceeding 120 % of the value of the claims thereby secured, whereby the Seller may decide at its own discretion which securities to release.
The Buyer shall have a duty to examine the goods immediately after receipt and to notify the Seller of any evident errors within 14 days. Evident errors can only be notified until such time as the goods are reprocessed (customisation). Deadlines shall be deemed met if the notification is sent in good time.
The Buyer shall be entitled to remedy only in the case of defects which are notified in good time and in the case of hidden defects. The Seller shall have the right to decide whether to effect remedy by repair or replacement. The Seller shall be entitled to a period of at least two weeks to effect remedy. Should an attempt at remedy fail, the Buyer may, at his option, repudiate the contract or claim a reduction in the purchase price. Where the Buyer has purchased the goods for purposes of a business, the warranty period shall be six months from the transfer of risk.
Deviations in quantity and quality of the goods which lie within the scope customary in the trade shall not constitute defects and shall not give rise to any warranty claims (e.g. colour, weight, finish, design) unless specifically agreed otherwise.
Unless agreed otherwise between the Seller and Buyer, all other claims of the Buyer, irrespective of the legal grounds, shall be barred. The Seller shall, in particular, have no liability for unforeseeable loss or damage. The exclusions and limitations of liability provided in these Terms and Conditions shall not apply if due to breach of a material contractual duty by the Seller; however also in this case, the Seller shall only be liable for the foreseeable loss or damage which is typical for contracts of the kind in question.
Where the liability of the Seller is excluded or limited pursuant to these Terms and Conditions, the same exclusions or limitations shall also apply to the personal liability of all employees of the Seller.
The Seller shall have liability only in accordance with the provisions of the General Terms and Conditions of Sale. Compensation may be claimed from the Seller only on grounds of gross negligence or wilful intent, except where such claims relate to injury to life or limb or damage to health. Compensation may also be claimed in the event of breach of any material contractual duty.
The Seller reserves copyright and right of title to cost estimates, drawings and other documents. Documents originating from the Seller may be made known or accessible to third parties only with the Seller's written consent. In the case of non-performance of an order, the Seller shall have the right to demand that all documents be returned to it.
XII. Place of Performance and Exclusive Legal Venue
The legal venue for all disputes arising from or in connection with the contractual relationship between the parties hereto shall be Hamminkeln-Dingden.
The legal relationship between the parties to the contract shall be governed exclusively by the law of the Federal Republic of Germany; application of the UN Convention on Contracts for the International Sale of Goods is barred.
Dingden, 21. September 2017