General Terms of Sale and Delivery
1. Place of performance and jurisdiction
Place of performance of the delivery and jurisdiction for all disputes arising from the relevant transactions and agreements is Augsburg. The German law is applicable.
2. Transactions and agreements
Transactions and agreements require in any case a written confirmation by the part of the supplier. Collateral agreements and amendments are not valid unless confirmed in writing by the supplier. Material such as illustrations, drawings, declaration of weights and measurements belonging to the offer are only approxi-mate unless expressly indicated to have binding force. The supplier reserves the right of ownership and copy-right to cost estimates, drawings and other material of this kind. They shall not be made accessible to third parties.
3. Delivery term
The delivery period begins upon receipt and clearance of all documents and after receipt of any initial payment that has been agreed upon.
The delivery deadline is regarded as having been kept if the delivery is ready for despatch within the period and the purchaser has been informed thereof. Fulfilment of the term of delivery requires the purchaser to have complied with his obligations under the particular agreement.
Goods reported ready for shipment must be called up by the purchaser immediately. If the goods are not called up and there is no possibility of shipment , the supplier is entitled to store the goods as he thinks fit at the pur-chaser´s expense and risk and to charge for the delivery as ex works. The agreed terms of payment are never-theless to be observed; otherwise the supplier is entitled to charge the bank rate of interest for the belated payment.
The delivery term is correspondingly extended if, after conclusion of the agreement, circumstances arise that impede its due fulfilment and for which the supplier can in no way be held responsible, such as industrial disputes, fire, mobilisation, confiscation, embargoes, prohibition of foreign currency transfers, civil distur-bances, lack of transport facilities, official intervention, traffic hindrances, general shortage of materials, restriction of energy consumption. This also applies when sub-suppliers are respectively affected.
The above-mentioned circumstances are also beyond the responsibility of the supplier if they take place during a delivery delay.
The supplier must inform the purchaser immediately and in writing of the commencement and termination of such hindrances affecting the delivery.
If the delaying circumstances make fulfilment of the agreement within a reasonable period of time impossible, either party has the right to withdraw there-from after written notice thereof.
Claims arising from belated delivery are excluded unless they are deliberate or the result of gross negligence. In this case, the purchaser, to the exclusion of the further claims, is only entitled to demand compensation for the delay. This compensation amounts up to ½% for each whole week of delay (but up to a maximum of 5%) of the value of that part of the overall delivery which, due to the delay, cannot be utilised at the right time or in accor-dance with the agreement.
If shipment is delayed at the purchaser´s request, he will be charged, beginning one month after notification that the delivery is ready for shipment, for the costs of storage, in the case of storage at the supplier´s factory at least ½ % of the amount of the invoice for each month.
The supplier, however, is entitled, after the determination and expiry of a reasonable period of time, to make other
use of the objects of the delivery and supply the purchaser within an appropriate extended term.
4. Liability for defective delivery
The supplier is, to the exclusion of further claims, liable for deficient delivery, including the absence of guaranteed proprieties as follows:
All parts which within six months from the date of the invoice (or within three months in case of 24-hour operation daily) become non-usable or whose useful-ness is considerably impaired, because of circumstances which prove to have arisen before transfer of liability – due in particular to defective design, poor material or faulty construction – must be either repaired or replaced free of charge as the supplier decides. The detection of such deficiencies must be made known to the supplier immediately and in writing. The costs of shipment and of the services of technicians for repair and replacement are borne by the purchaser. Repair and replacement can be carried out under the condition that, so far as desired by the supplier, the part in question is returned at the purchaser´s expense to the supplier for determination of liability under the terms of the guarantee. No guarantee is accepted for damages arising for the following reasons: non-observance of the supplier´s technical instructions, unsuitable and improper usage, defective assembly or mistake made while putting the parts into operation by the purchaser or third parties, natural wear and tear, faulty or negligent handling, the use of unsuitable operating equipment and facilities, replace-ment materials, inadequate construction works, unsuitable buildings or sites, as well as chemical, electro-chemical and electrical influences, in so far as they are not the fault of the supplier. Regarding substantial components produced by other manufacturers, the liability of the supplier in the case of a purchase made by merchants is limited to the transfer of the liability claims which he has on these manufacturers, unless realisation of the transferred claims on the latter is not possible. If installation or putting into operation is delayed due to gross negligence or intention on the part of the supplier, the liability expires in conformity with the duration of the delay later, at the latest however 12 months after transfer of risk.
Any replaced part becomes the property of the supplier.
If the supplier thinks it necessary to make modifications or to replace parts or machines, the purchaser will grant the supplier the requisite time and opportunity. If this is refused, the supplier is discharged from liability for defects. If the suppliers does not recognise the claims of the purchaser within the given time, the right of the purchaser to lodge a claim for defects expires in all cases after expiry of the warranty period.
If the purchaser or a third party makes modifications or repairs without the supplier´s prior written approval, the supplier will be discharged from liability.
Further claims on the part of the purchaser, particularly regarding compensation for damages that did not happen to the object of delivery itself, are, as far as permitted by law, excluded.
Liability for repairs carried out after expiry of the liability period will not be accepted unless explicitly agreed.
Freight costs resulting from replacement or guarantee are charged to the purchaser.
The supplier can in no way accept liability for corrosion caused by the use of unsuitable and non-standard operating equipment and aids etc. or by a cleaning agent containing corrosive elements.
For used machines, any liability on the part of the supplier is totally excluded.
5. Transfer of liability and receipt of goods
Liability shall pass to the purchaser at the latest on despatch of the parts to be delivered. This also applies in case of partial deliveries or the supplier having entered other commitments in addition such as shipment costs or cartage and installation. This also applies to fob transactions. If desired by the purchaser, the goods will be insured by the supplier against theft, breakage, transport, fire and water damages as well as other insurable risks at the purchaser´s expense.
If shipment is delayed due to circumstances for which the purchaser can be held responsible, the liability passes to the purchaser from the date the goods are ready for despatch; the supplier is however obliged to effect the insurance the purchaser requests at the expense of the latter.
Delivered goods, even with minor defects, shall be accepted by the purchaser, without prejudice to possible rights under (4).
Partial deliveries are permissible.
Packing will be charged for at cost price and cannot be returned. Only the supplier can decide on eventual exceptions.
7. Terms of payment
Payments shall be made net cash without deductions and free of charge for the supplier. As far as discounts resulting from individual contracts are concerned, they can only be granted provided that the purchaser has met all liabilities arising from current or previous transactions with BÖWE Garment Care Systems GmbH.
Credit period: within 8 days after date of shipment, net cash, provided no other agreements have been made. In commercial transactions, the supplier is entitled to claim interest on arrears amounting up to 5 % above the average interest rate between those rates which the European Central Bank pays for deposits made by banks and those which it bills for interbank overdrafts, from due date without special formal notice of default.
The balancing of accounts by the purchaser due to counterclaims on his part which are not accepted by the supplier is not permissible. Retention is only admissible as far as the right of withholding is based on the same contract.
Drafts and cheques are credited subject to entry and with value of the date on which the supplier has the countervalue at his disposal.
All claims to payment held by the supplier, including those for which he has bills of exchange, will fall due immediately if the terms of payment are not observed or if, after conclusion of the contract, fact of circumstances come to light which are likely to lower the purchaser’s credit standing. Furthermore, in such cases, the supplier is entitled to make outstanding deliveries only against advance payment or by way of security and to withdraw from the contract after an adequate additional period of time, or to claim damages for non-performance.
For deferred payments, the purchaser shall pay interest of at least 5 % above the average interest rate between those rates which the European Central Bank pays for deposits made by banks and those which it bills for interbank overdrafts from the date of invoice; the same applies to amounts in default.
Persons acting in the name and for the account of the supplier shall only be authorised to collect payments as far as the supplier has confirmed this expressly to the purchaser in writing.
In case of default in payment on the part of the purchaser, the supplier is entitled to withdraw from the contract and to claim damages for non-performance.
Instead of withdrawing from the contract, the supplier can also take back the goods supplied without giving up his claims until their complete satisfaction. The purchaser hereby agrees to the supplier taking back the delivered goods in case of default in payment. He also consents to all actions taken on the part of the supplier necessary to gain possession of the direct property and declares that he is not entitled to any claim arising from unlawful interference. In case of taking back the goods supplied, the purchaser shall bear all costs including those of possible reinstallation. In case of withdrawal, the purchaser shall compensate the supplier for every depreciation even not caused by the purchaser in addition to the use of the goods to be delivered.
Prices are ex works excluding packing, freight, postage and insurance, unless other-wise agreed upon in writing, and excluding all national and local duties which may be levied in the future or retrospectively on individual deliveries.
9. Reservation of title
The goods supplied remain the property of the supplier – despite prior transfer of liability – until all claims resulting from the transaction including all secondary claims are completely satisfied and bills of exchange and cheques are honoured. Until then, the purchaser agrees to insure the delivered goods at his own expense in favour of the supplier against fire, water, breakage and other damages and to prove this at the request of the supplier. He shall further-more grant the supplier or his agent access to the site of installation.
Processing of the goods supplied by the supplier whilst they are still his property shall always be executed by the order of the supplier, without his accepting any liability therefore; the new object shall become the property of the supplier.
If the goods supplied by the supplier are connected to or combined with other goods and cannot be regarded as the main part of the new object, the purchaser shall already now cede his claim to ownership or co-owner-ship of the new object of the supplier and preserve the new object to the supplier with due commercial care.
As long as the supplier’s reservation of title exists, the delivered object, the object manufactured therefrom, or a new object resulting therefrom by combination may be neither alienated nor encumbered.
If, with the consent of the supplier, the purchaser alienates the object delivered by the supplier, or the object manufactured therefrom or the new object resulting from combination therewith and the ownership of which has been transferred to the supplier, the purchaser herewith agrees to immediately cede all his claims resulting from alienation towards his customers together with all secondary rights to the supplier until all claims resulting from deliveries of goods and to which the supplier is entitled are completely redeemed. The cession of claims is herewith accepted. If the reserved goods are alienated together with other goods not belonging to the supplier, the cession of the claims arising from the alienation shall be valid only to the value of the goods to which property is reserved at the time of delivery for the purpose of fulfilling the alienation trans-action. The cession shall provisionally be a tacit one, i.e. the customers shall not be informed. The purchaser shall be entitled to collect the claims until further notice, he is however not entitled to dispose of claims otherwise, e.g. by cession. The supplier has the right to revoke the authorisation to collect claims and to collect them by himself. He refrains therefrom as long as the purchaser meets his obligations to pay in due form. At the request of the supplier, the purchaser shall be obliged to notify his customers of the cession and to give all necessary information and documents to the supplier which are required for the assertion of ceded claims.
If the value of the securities given to the supplier exceeds his delivery claims by a total of more than 25 %, the supplier is obliged at the request of the purchaser to retransfer the excess.
If the object delivered by the supplier, the object resulting from it or a new object resulting from combination, the property of which has been transferred to the supplier, is distrained or seized, the purchaser agrees to imme-diately inform the supplier in writing.
The assertion of the reservation of title as well as the distraint of the object supplied shall not be deemed as a withdrawal from the contract.
10. Later deliveries
The above-mentioned General Terms of Sale and Delivery shall be regarded as agreed upon in business transactions even if at some later time goods or spare parts are delivered which have been ordered verbally.
11. Purchaser’ s right of withdrawal
The purchaser is entitled to withdraw from contract if, prior to the transfer of liability, the overall performance should conclusively become impossible to the supplier. The purchaser shall also have the right to withdraw from the contract, if, in the case of an order for objects of the same nature, execution of a part of the delivery becomes impossible as far as the quantity is concerned and he has a justified interest in refusing a partial delivery; if this is not the case, the purchaser shall have a right to lower the consideration correspondingly.
In the event of default in performance within the meaning of (3) of the General Terms of Sale and Delivery and a reasonable additional period of time being granted to the supplier in delay by the purchaser with the explicit statement that after expiry of this term the acceptance of the performance will be refused, and if the additional period is not observed, the purchaser shall be entitled to withdraw from the contract.
If the impossibility occurs during the delay in acceptance of delivery or due to the fault of the purchaser, the latter shall be obliged to pay in return.
Furthermore, the purchaser shall have a right to withdraw if the supplier through his own fault has allowed to expire ineffectively an additional period of time which was granted to him for a repair or replacement delivery with respect of defects for which he is responsible within the meaning of these General Terms of Sale and Delivery. The right of the purchaser to withdraw shall also be given in the case of the impossibility or inability on the part of the supplier of carrying out repairs or a replacement delivery.
The adequate additional period of time shall not start until deficiency of the obligation of liability on the part of the supplier is recognised and proven. As far as is legally permitted, all further claims on the part of the purchaser shall be excluded; this particularly applies to redhibition, notice or deduction from price, as well as to replacement of damages of any kind, including such damages which have not affected the delivered goods themselves.
12. Supplier’s right of withdrawal
In the event of unforeseeable occurrences within the meaning of (3) of the General Terms of Sale and Delivery, as far as they considerably change the economic importance or the substance of the perfor-mance or affect the operations of the supplier, and should the execution prove unfeasible later on, the agreement shall be adapted correspondingly.
As far as this is not justifiable from an economic point of view, the supplier shall have the right to withdraw from the contract partially or entirely. The purchaser agrees not to claim any damages for such a withdrawal. If the supplier wishes to make use of the right of withdrawal, he shall communicate this to the purchaser immediately after knowledge of the consequences of the occurrence, even if for the time being an extension of the term of delivery was agreed upon.
13. Liability for secondary obligations
If, because of the fault of the supplier, the delivered goods cannot be used by the purchaser in conformity with the contract due to omitted or faulty execution of proposals and consultations of the supplier previous to or following the conclusion of the contract as well as other contractual secondary obligations – particularly operating and maintenance instructions for the delivered goods – the stipulations of (4) and (11) shall apply correspondingly excluding other claims on the part of the purchaser.