§ 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:
- with 4% rush discount within 10 days of the invoice being issued and shipment of the goods;
- with 2.25% discount from the 11th to 30th day after the invoice being issued and shipment of the goods;
- net from the 31st to 60th day after the invoice being issued and shipment of the goods.
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: