Conditions of Delivery
ear bag GmbH, Schulstr. 38, 09125 Chemnitz/Germany
§ 1 Scope of General Terms and Conditions of Business
Seller’s deliveries, services and offers will be made exclusively on the basis of these Terms and Conditions of Business. Consequently, these Terms and Conditions also apply to any future business relations, even if such Terms and Conditions are not expressly agreed upon again. These Terms and Conditions shall be considered as accepted upon acceptance of the goods or services at the latest. Any counterconfirmation by Purchaser referring to his own terms and conditions of business and/or purchase is herewith objected to.
§ 2 Offer and Conclusion of Contract
(1) Seller’s offers are without engagement and not binding.
(2) Drawings, illustrations, measures, weights or any other performance data shall be binding only if expressly agreed in writing.
§ 3 Prices
(1) Unless otherwise specified, prices are EURO prices and do not include any turnover tax. Turnover tax will be added in the legally applicable amount. Prices are ex delivery place in Sri Lanka/Negombo, Sweden/75323 Uppsala or Federal Republic of Germany/09125 Chemnitz, excluding shipping and transportation costs. Costs for packing according to special requirements shall be borne by Purchaser.
(2) The agreed prices shall be valid only for the respective order concluded.
§ 4 Time of Delivery and Service
(1) Delivery dates or periods, which may be agreed in a binding or non binding manner, must be fixed in writing.
(2) Seller’s compliance with his delivery and service obligations presupposes the timely and proper fulfilment of Purchaser’s obligations, in particular the timely receipt of all documents to be delivered by Purchaser and of the approvals and releases required, as well as the compliance with the agreed terms of payment and all other Purchaser’s obligations, including those coming from any previous contractual relationship.
If these prerequisites are not complied with in due course, Seller’s delivery and service obligations shall be reasonably extended in time; this shall not be the case if Seller is responsible for the delay.
(3) Seller shall not be responsible for any delay in delivery and service due to force majeure and any events which render Seller’s delivery difficult or impossible, not only for a temporary period of time – including, in particular, strike, lockout, official orders etc., including those occurring at Seller’s suppliers or their sub-contractors –, even if periods and dates have been agreed in a binding manner. In this case, Seller shall be entitled to postpone the delivery and/or service by the duration of the hindrance, for a maximum period of 5 weeks, plus an additional delivery period of 12 days, or to wholly or in part withdraw from the contract on account of the part not yet performed.
(4) If the hindrance lasts more than 5 weeks, Purchaser shall be entitled after having granted a reasonable extension of time of 12 days, to withdraw from the contract with regard to the part not yet performed. If delivery time is extended or if Seller is released from his obligation, Purchaser shall not be entitled to derive any claims for damages from it. Seller may claim the benefit of the said circumstances only if he informs Purchaser immediately.
(5) If Seller is responsible for non-compliance with periods and dates promised in a binding manner or if he is in default, Purchaser shall be entitled to default damages in the amount of 1/2% for each complete week of default, but only in a maximum amount of up to 5% of the invoice value of the deliveries and services affected by default. Any further reaching claims are excluded, unless the default is due at least to Seller’s gross negligence.
(6) Seller shall be entitled at any time to perform partial deliveries and partial services, unless partial delivery or partial service is of no interest to Purchaser.
(7) If the acceptance of goods does not take place in due course through Purchaser’s fault, Seller shall be entitled, in his sole discretion, after granting an extension of time of 12 days, either to issue an arrears invoice or to withdraw from the contract or to claim damages.
(8) The delivery of the goods takes place at specified dates (business day or calendar week as specified). All sales are concluded only with regard to specified quantities, products, qualities, and fixed prices. Both Parties are bound to this rule. No commission business will be carried out.
(9) No fixed-date business shall be performed. However, if the Parties expressly agree in a particular case that the goods are earmarked for a given action, it shall be possible to agree on a fixed date of delivery without any extension of time. If this date of delivery is exceeded, Purchaser shall be entitled to claim replacement of special expenses for the goods ordered, but not more than in the amount of the purchase price of the goods ordered. Any further reaching claims shall be excluded. In case of defects in the action goods, Purchaser shall only be entitled to reduce the purchase price or to withdraw from the contract.
§ 5 Passage of Risk
Risk shall pass to Purchaser as soon as the consignment has been handed over to the person carrying out the transportation or as soon as the consignment has left Seller’s store for the purpose of shipment. If the dispatch is delayed at Purchaser’s request, risk shall pass to Purchaser upon notification of readiness for dispatch.
The goods will be shipped without insurance. Anything else may be agreed at Purchaser’s request and cost.
§ 6 Purchaser’s Rights in Case of Defects
(1) The products are delivered free from defects in manufacture and material. Minor and technically unavoidable deviations in terms of quality, colour, size, width, weight, finish or design must not be complained about. This rule shall also apply to any deviations usual in normal trade practice, unless Seller has promised in writing to deliver goods according to sample.
(2) Claims on account of material defects shall become time barred after 12 months.
(3) If any Seller’s product information is not complied with or if changes are made to the delivered goods, any claims on account of defects in products shall become null and void, unless Purchaser refutes any respective substantiated statement saying that the defect is only due to one of the above-mentioned circumstances.
(4) Purchaser shall notify defects to Seller in writing without delay, but within 12 days following the receipt of the goods at the latest. Defects which cannot be detected in spite of careful checks within that period of time shall be notified in writing to Seller immediately after they have been discovered.
(5) In case of justified complaints, Seller shall have the right to rectify defects or deliver faultless replacement goods within a reasonable period following the receipt of the returned goods. In this case, Seller shall bear the freight charges. If the subsequent performance fails, Purchaser shall only have the right to reduce the purchase price or to withdraw from the contract.
(6) Any liability for normal wear and tear shall be excluded.
(7) Claims against Seller on account of defects may be asserted only by the immediate purchaser and are not assignable.
§ 7 Retention of Ownership
(1) Up to the satisfaction of all claims (including all balance claims from current account) which Seller is entitled to against Purchaser for any cause in law now or in future, Seller shall be granted the following securities which he will release upon request and at his own discretion if their value exceeds the claims lastingly by more than 10%.
(2) The goods shall remain property of the Seller. Purchaser shall hold Seller’s property without remuneration.
(3) Purchaser shall be entitled to dispose of the conditional goods in the ordinary course of business as long as he is not in default. Pledging or transfer by way of security is inadmissible. The claims arising out of the resale or any other cause in law (insurance, unlawful act) with regard to the conditional goods (including all balance claims from current account) are fully assigned by Purchaser to Seller for security purposes right now. Seller authorizes him revocably to collect the claims assigned to Seller, for Seller’s account in his own name. This collecting power shall be revoked only if Purchaser does not fulfil his payment obligations properly. Under this rule, Purchaser’s delay of payment shall be considered equal to a considerable deterioration of Purchaser’s pecuniary situation.
If Purchaser’s collecting power is revoked by Seller under the said prerequisites, Seller is herewith authorized by Purchaser to inform customers of the assignment and collect the claims himself.
In order to assert the assigned claims, Purchaser shall furnish the information required and permit the verification of such information. In particular, he shall hand over to Seller upon request an accurate list of claims he is entitled to, including names and addresses of customers, amounts of individual claims, date of invoice etc.
(4) In case of access to the conditional goods by any third parties, especially in case of attachment, Purchaser shall immediately point to Seller’s property and inform Seller immediately in order to allow Seller to assert his property rights. In so far as the third party is unable to reimburse Seller the judicial and extrajudicial costs arising in this connection, Purchaser shall be liable for it.
(5) If Purchaser’s behaviour is contrary to the contract – especially in case of delay of payment – Seller shall be entitled to withdraw from the contract and to demand the return of the conditional goods. If Seller takes back the goods in the exercise of his right to retention of ownership, there is withdrawal from contract only if Seller expressly declares such withdrawal. Seller is entitled to satisfy himself from the conditional goods taken back, by way of private sale.
(6) Purchaser shall hold the conditional goods in custody for Seller without remuneration. He shall insure these goods to the usual extent against the usual risks such as, for instance, fire, theft, and water. Purchaser herewith assigns to Seller the claims for compensation he is entitled to on account of damage of the above-mentioned kind against any insurance companies or other parties liable, in the amount of the invoice value of the goods. Seller accepts the assignment.
§ 8 Payment
(1.1) The delivery of individual products up to a quantity of 79 pieces shall take place cash on delivery or cash in advance.
(1.2) The delivery as from 80 pieces shall take place against invoice which shall be due and payable immediately without deduction.
(1.3) The delivery as from 200 pieces shall take place against invoice which shall be due and payable within 30 days following the receipt of the goods, net and without deduction.
(2) In spite of any Purchaser’s terms and conditions to the contrary, Seller shall be entitled to set off payments against Purchaser’s previous liabilities in the first instance and shall inform Purchaser on how such setting off has been carried out. If any costs and interest have already arisen, Seller shall be entitled to set off the payment first of all against the costs, then on the interest and finally on the principal service.
(3) Payment shall be considered as being effected only if Seller can dispose of the amount. In case of payment by cheque, payment shall be considered as being effected only if the cheque is honoured.
(4) If Purchaser is in default, Seller shall be entitled to ask for interest in the amount of 8 percentage points above the base interest rate for liquidated damages from the point of time concerned. Interest shall be lower if Purchaser proves that the charge is lower; Seller shall be entitled to prove that the damage concerned is higher.
(5) If Seller gains knowledge of any circumstances challenging Purchaser’s credit worthiness and, in particular, if Purchaser does not honour a cheque or stops his payments, or if Seller gains knowledge of any other circumstances challenging Purchaser’s credit worthiness, Seller shall be entitled to make the entire residual debt due and payable, even if he has accepted any cheques. In this case, Seller shall also be entitled to ask for advance payments or provision of security.
(6) Even in case of complaints or counter-claims being asserted, Purchaser shall only be entitled to offsetting, retention or reduction if the counter-claims have been ascertained in a legally effective manner or if they are uncontested. However, Purchaser shall also be entitled to retention on account of counter-claims from the same contractual relationship.
(7) If Purchaser makes use of his right to revocation within the meaning of § 357, German Civil Code (BGB) and returns the goods, he shall bear the regular costs of the return shipment if the value of the order amounts up to EUR 40.00
§ 9 Liability
(1) Regardless of the kind of breach of duty, including unlawful acts, claims for damages shall be excluded unless such acts have been committed wilfully or by gross negligence.
(2) In case of violation of any essential contractual obligations, Seller shall be liable for any negligence, but only up to the amount of the foreseeable damage. Claims on account of lost profits, saved expenses, third parties’ claims for damages as well as other indirect and consequential damage must not be asserted unless a characteristic of state guaranteed by Seller has the express purpose of securing Purchaser against such damage.
(3) The limitations and exclusions of liability set forth in paragraphs 1 and 2 shall neither apply to any claims arising out of Seller’s fraudulent behaviour nor to any claims on account of the Product Liability Act and damage on account of harm to life, limb or health, in case of liability for any guaranteed characteristics of state.
(4) In so far as Seller’s liability is excluded or limited, this rule shall also apply to Seller’s officers, employees, representatives, and servants.
§ 10 Applicable Law, Place of Jurisdiction, Partial Invalidity
(1) These Terms and Conditions of Business and all legal relations between Seller and Purchaser shall be subject to the law of the Federal Republic of Germany. The provisions of the UN Sales Law shall not be applicable.
(2) In so far as Purchaser is a businessman, a legal person of public law or a holder of public special assets, the exclusive place of jurisdiction for any disputes arising directly or indirectly out of the contractual relationship shall be Chemnitz.
(3) If any provision of these Terms and Conditions of Business or any provision under any other agreements is or becomes ineffective, the effectiveness of all other provisions or agreements shall not be prejudiced hereby.