H. Obermeyer GmbH & Co.KG
Immenstädter Straße 6-8
765 (Kempten district court)
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Standard Terms and Conditions of the Textile Industry
These standard terms and conditions apply solely between traders.
§ 1 Place of performance, delivery and acceptance
1. The place of performance for all services arising from this contract of delivery is the commercial establishment of the Seller.
2. Delivery of the goods occurs ex works (Germany). These shipping costs shall be borne by the Buyer. The Buyer may choose the freight forwarder. The goods are to be sent without insurance. A delivery notice can be agreed upon.
3. In the case of delivery from an external warehouse, an additional flat fee can be charged for storage.
4. Packaging costs for special packing shall be borne by the Buyer.
5. Sorted partial shipments and partial shipments containing combinations for sales convenience must occur promptly and advance notification of these given. Unsorted shipments are permitted only with the consent of the Buyer.
6. If, through the fault of the Buyer, acceptance does not occur on time, the Seller has the option, after establishing a grace period of 12 days, of either issuing an arrears invoice, withdrawing from the contract or demanding compensation for damages.
§ 2 Place of jurisdiction
The place of jurisdiction (also for actions regarding bills of exchange and cheques) is, at the choice of the plaintiff, either the location of the commercial establishment of one of the parties or the place of business of the trade or cartel organisation to which the supplier belongs (Cologne). The court invoked first has jurisdiction.
§ 3 Subject matter of the contract
1. Delivery of the goods shall occur on specified dates (working day or a particular calendar week). All sales are concluded only for particular quantities, items, quality and set prices. Both parties are bound by this. Commission-based transactions shall not be made.
2. Block orders are permitted and must, at the time of conclusion of the contract, be given a time limit. The acceptance period may not be more than 12 months.
§ 4 Interruption of delivery
1. In the case of force majeure, work disputes and other interruptions to operations not due to fault which have lasted or are likely to last longer than a week, the delivery period and the acceptance period shall be automatically extended by a period equivalent to the period of delay, for a maximum, however, of 5 weeks plus a period for subsequent delivery. The extension only becomes effective if the other party is given prompt notice of the reason for the hindrance as soon as it is becomes clear that the previously specified deadline cannot be adhered to.
2. If delivery or acceptance has not occurred on time, then the other contractual party may withdraw from the contract. Nevertheless, it must provide written notice of this at least two weeks prior to exercising its right of withdrawal.
3. If the other contractual party was not, upon request, informed promptly that delivery or acceptance was not going to occur on time, and if the hindrance lasted longer than 5 weeks, the other contractual party can withdraw from the contract immediately.
4. Damage compensation claims are excluded if the particular contractual party has fulfilled its obligations according to Items1-3.
§ 5 Period for subsequent delivery
1. After expiry of the delivery period, a subsequent delivery period of 12 days applies automatically without the need for a declaration. After expiry of the subsequent delivery period, withdrawal from the contract shall be deemed to have occurred, to the exclusion of any damage compensation claims. Withdrawal from the contract in accordance with Item 1 Sentence 2 does not take effect if the Buyer declares to the Seller during the subsequent delivery period that it seeks fulfilment of the contract. However, the Seller shall be released from its delivery obligation if the Buyer, on being requested to do so by the Seller within the subsequent delivery period, does not comment on whether it seeks performance of the contract.
2. Fixed-date transactions shall not be made. If the parties expressly agree, in an individual instance, that the goods are intended for a particular occasion, a firm delivery date without an extension period may be agreed upon. If this delivery deadline is exceeded, the Buyer can demand reimbursement of particular expenses for the ordered goods, at most, however, in the amount of the purchase price of the ordered goods. Further claims are excluded. The Buyer, in the event of defects in the goods intended for a particular occasion, can only seek a reduction in the purchase price or withdraw from the contract.
3. If the Buyer wishes to claim compensation for damages instead of performance, it must inform the Seller that it has a period of 4 weeks to complete performance and that otherwise, upon expiration of this period, it will reject performance. The period shall be calculated from the day on which the Buyer’s notification is sent by registered post. In the case of Item 1 Sentence 2 this provision applies instead of the withdrawal cited there only if notification of this period set by the Buyer has reached the Seller within the subsequent delivery period.
4. For ready-to-despatch goods and NOS goods – “Never-out-of-Stock” – the subsequent delivery period is 5 working days. In the event of non-delivery, the Buyer must be informed immediately. In other respects, the provisions of Items 1 and 3 apply.
5. Claims of the Buyer owing to late delivery that are made before expiration of the subsequent delivery period are excluded.
§ 6 Notice of defects
1. Notices of defects are to be sent to the Seller within 12 days of receipt of the goods at the latest.
2. Once the delivered goods have been cut, or other processing of these commenced, any claim of obvious defects is excluded.
3. Minor, technically unavoidable deviations in the quality, colour, width, weight, finish or pattern may not be claimed as defects. This also applies to deviations customary in the trade unless the Seller has, in writing, assured delivery according to sample.
4. In the event of justified notices of defects, the Seller has the right to rectification or delivery of replacement goods free of defects within 12 days of receipt of the returned item. In this case, the Seller shall bear the freight costs. If the supplementary performance is not successful, the Buyer only has the right to a reduction in the purchase price or to withdraw from the contract.
5. Once the deadline named in Item 4 has expired, the Buyer can only obtain a reduction in the purchase price or withdraw from the contract.
6. The Buyer must inform the Seller of hidden defects immediately after their discovery. On the basis of a defect notified in a timely manner, the Buyer can only obtain a reduction in the purchase price or withdraw from the contract.
§ 7 Payment
1. The invoice shall be issued on the day of delivery or provision of the goods. Postponement of the due date (fixing of payment date) is in principle excluded.
2. Invoices are payable:
From the 61th day, default starts to apply under § 286 II No. 1 of the German Civil Code.
3. If, in place of cash, cheque or bank transfer, a bill of exchange is accepted by the Seller, then a supplementary fee of 1 % of the bill of exchange sum will be charged on accepting the bill of exchange after the net payment date of 61 days after the invoice being issued and shipment of the goods.
4. In place of the abovementioned provision, the following arrangements may be made provided that the Buyer is bound by these for at least 12 months:
|Invoices from||To be paid with 4% discount||To be paid with 2.25% discount||To be paid net|
|1st – 10th of the month||on 15th of the same month||on 5th of the next month||on 5th of the month following the next|
|11th – 20th of the month||on 25th of the same month||on 15th of the next month||on 15th of the month following the next|
|21st – end of the month||on 5th of the next month||on 25th of the next month||on 25th of the month following the next|
5. Notice must be provided 3 months in advance of changes to the type of arrangement.
6. In no case shall interest be provided on prepayments.
7. Payments shall always be used to settle the oldest accounts payable plus the interest due to default that has accrued on these.
8. In every case, the postmark determines the effective date of payment. In the case of bank transfer, the day preceding the crediting of the Seller’s bank is deemed the effective date of payment.
§ 8 Payment after the due date
1. For payments after the due date, interest shall be charged at a rate of 8 % above the base rate of the Deutsche Bundesbank applicable at the time.
2. Until complete payment has been made of any invoiced amounts due, including interest, the Seller is not obligated to make any further delivery based on any current contract. The right to claim damages caused by default is reserved.
3. In the event of default in payment by the Buyer or in the case of impending insolvency or other essential deterioration in the financial circumstances of the Buyer, the Seller may demand, after establishing a supplementary period of 12 days, payment in cash before delivery for deliveries still outstanding from any current contract, overriding any otherwise applicable time for payment, or withdraw from the contract, or claim compensation for damages.
§ 9 Payment method
1. The offsetting and withholding of invoiced amounts due is only permissible in the case of undisputed claims or claims established as final and absolute. This also applies in the case of the stoppage of payments by the Seller. Other deductions (e.g. postage) are not permitted.
2. Bills of exchange, insofar as they are taken as payment, are accepted only against reimbursement of fees. Bills of exchange and accepted bills of exchange with a term of more than three months shall not be accepted.
§ 10 Retention of title
1. The goods remain the property of the Seller until complete payment has been made for all claims from deliveries of goods from the entire business relationship, including secondary claims, damage compensation claims and the cashing of cheques and bills of exchange. The retention of title also remains where individual claims of the Seller have been incorporated into a current invoice and the balance has been established and acknowledged.
2. If the goods subject to retention of title have been connected to a new movable item, mixed or processed by the Buyer, then from the perspective of the Seller this is effected without the latter being obligated as a result thereof. Through the connection, mixing or processing, the Buyer does not acquire ownership of the new item under §§ 947 ff of the German Civil Code. In the event of connection, mixing or processing with items not belonging to the Seller, the Seller acquires co-ownership of the new item based on the ratio of the invoiced value of the goods subject to retention of title to the overall value.
3. If a centralised authority is engaged in the business relationship between the Seller and Buyer that takes over del credere liability, the Seller, on shipment of the goods, transfers ownership to the centralised authority subject to the condition of payment of the purchase price by the centralised authority. The Buyer shall be relieved of payment liability only upon payment by the centralised authority.
4. The Buyer is entitled to onward sale or processing only if consideration is given to the following conditions.
5. The Buyer may sell or process the goods subject to retention of title only in the course of ordinary business and provided its financial circumstances do not deteriorate.
6a. The Buyer hereby assigns the claim, with all related rights, from resale of the goods subject to retention of title – including any current account balance claims – to the Seller.
6b. If the goods have been connected, mixed or processed and the Seller has obtained co-ownership of these in the amount of his invoice value, it is entitled to a claim for a share of the purchase price in proportion to the value of its rights to the goods.
6c. If the Buyer has sold the claim within the scope of genuine factoring, the Buyer assigns to the Seller the substitute claim against the factor, and will forward the Seller its sales revenue in proportion to the value of the rights held by the Seller to the goods.
The Buyer is obligated to disclose the assignment of the claim to the factor if it is more than 10 days overdue with the payment of an invoice or if its financial circumstances significantly deteriorate. The Seller accepts this assignment.
7. The Buyer is authorised, as long as it is fulfilling its payment obligations, to collect the assigned claims. The collection authorisation ends with default in payment on the part of the Buyer or in the event of a significant deterioration in the financial circumstances of the Buyer. In such a case, the Seller is hereby authorised by the Buyer to inform customers of the assignment and to collect the claims itself.
The Buyer must provide the necessary information for collecting the assigned claims and allow this information to be checked. In particular, it must hand over to the Seller, on request, a precise list of the claims due to it with names and addresses of customers, the amount of the individual claims, the date of invoice etc.
8. Pledging the goods subject to retention of title or the assigned claims, or using these as a security, is impermissible. The Seller must be notified immediately of any seizures and provided with the detals of the creditor.
9. If the value of the security in place for the Seller exceeds that of its total claims by more than 10 %, the Seller is obligated, at the request of the Buyer, to in this respect release securities of its choice.
10. If the Seller takes back the delivered goods in exercise of its right of retention, withdrawal from the contract only exists if the Seller expressly declares this. The Seller can satisfy its claims through private sale of the goods subject to retention of title that it has taken back.
11. The Buyer shall keep the goods subject to retention of title for the Seller free of charge. It must insure them within the usual scope against the usual hazards such as fire, theft and water. The Buyer hereby assigns to the Seller the compensation rights to which it is entitled as a result of damage of the abovementioned type, against insurance companies or other obligated parties, in the amount of the invoiced value of the goods. The Seller accepts this assignment.
12. All claims and rights from retention of title for all the special forms specified in these Terms and Conditions remain until complete release from contingent liabilities (cheques/bills of exchange) that the Seller has assumed in the interest of the Buyer. The Buyer is in principle permitted, in the case of Sentence 1, to pursue factoring for its receivables. Before assuming any such contingent liabilities it must nonetheless inform the Seller.
§ 11 Applicable law
The law of the Federal Republic of Germany applies. The United Nations Convention on Contracts for the International Sale of Goods from 11.04.1980 shall not apply.
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