TERMS OF SUPPLY AND PAYMENT
Terms of Delivery and Payment of Knopf und Knopf International GmbH & Co. KG
Sales and delivery are exclusively subject to the following conditions. These shall also apply in the case of the provision of sample shipments. Our terms and conditions also apply to all subsequent orders. Deviating conditions of the Purchaser are not part of the contract even if they are not expressly contradicted. They are valid only if an explicit written agreement exists. Our Terms of Delivery and Payment apply only to companies within the meaning of § 310 Para. 1 German Civil Code.
1. Conclusion of contract, property rights
Our offers are subject to change without notice unless otherwise agreed. If the order qualifies as an offer according to§ 145 German Civil Code, we may accept it within 2 weeks. An order shall be deemed to be accepted only if we have acknowledged acceptance in writing which can also be done by a delivery note or an invoice. Collateral agreements and changes are effective only if they are confirmed in writing by us.
We reserve the property rights and copyrights for documents belonging to the offer such as illustrations, drawings and sample shipments; they may not be made accessible to third parties. Our products are protected under the patent and design protection law. Unauthorised reproductions will be prosecuted under criminal and civil law.
In the absence of any different express written agreement, our written order confirmation shall be decisive for the scope of the delivery.
2. Prices and Terms of Payment
Unless the order confirmation provides otherwise, our prices are ex works excluding packaging. Prices shall be subject toVAT at the respective statutory rate as well as the cost of related transportation or shipping and packing.
Payment must be made net within 30 days from date of invoice. If payment is made within 10 days from the invoice date, a 2% discount is granted.
The right of retention or offsetting is excluded with counter-claims which we have not recognised or which have not been disputed by us. Additionally, the Purchaser is only entitled to exercise a right of retention insofar as his counter claim is based on the same contractual relationship.
We only accept bills of exchange and cheques as payment on account and only after written agreement. They shall not be deemed to constitute payment until honoured. All costs are borne by the Purchaser.
If we learn of circumstances which give rise to justified doubts regarding the Purchaser's creditworthiness after the conclusion of the contract, we shall be entitled to require prepayment or a reasonable security before making any further deliveries then still outstanding until the Purchaser affects payment or security has been provided.
If our delivery contractually is rendered later than four months after conclusion of the contract, we can reasonably adjust the price to the contract in accordance with changes to the relevant material costs which may have taken place between conclusion of the agreement and delivery. In the same manner and to the same extent, we are immediately obligated to reduce the price appropriately in the presence of cost reductions. We will announce a corresponding change in the price to the Purchaser at least 2 weeks in advance in writing. Proof of the concrete changes will be provided to the Purchaser upon his request by Knopf und Knopf International GmbH & Co. KG.
3. Delivery deadlines, delay in delivery
The period of delivery determined by us shall only commence after all technical questions have been resolved. Unless otherwise agreed, the delivery time is met if, before its expiration, the goods are available at the registered office of the supplier for collection or dispatch.
The compliance with our delivery commitment is further subject to the timely and orderly completion of the obligations of the Purchaser. The right to raise objection to non-fulfilment of the contract is reserved.
In the case of on-call orders, the Purchaser is obliged to take delivery of the goods in question within the agreed call time and namely by specifying the delivery date. Where no time for the call has been stipulated, the Purchaser must call for delivery within a reasonable time. Failing a contractual call, we are entitled to demand payment of the agreed price without a concurrent offer.
If the purchaser falls into default of acceptance or if he culpably breaches other cooperation duties, we shall be entitled to demand compensation for the loss resulting to us in this respect, including any extra expenditures. Further claims or rights are reserved.
If the conditions of Paragraph 3.4 exist, the risk of accidental loss or accidental deterioration of the goods is transferred to the Purchaser at the time in which he is advised of acceptance or debtor's delay.
In all cases in which it is not possible for us to manufacture and deliver on time due to unpredictable reasons and for which we cannot be held responsible (e.g. acts of God, strikes, lawful lockouts, unexpected equipment failure, lack of raw materials and supplies, etc.), the delivery period shall be extended accordingly. We are obliged to immediately inform the Purchaser of the beginning and end of such events. If the obstruction lasts longer than three months, we are entitled to withdraw from the contract. We will immediately refund any already rendered reciprocal services.
We are liable to the extent of the statutory regulations in so far as the sales contract in question is a firm deal in § 286Para. 2 No. 4 German Civil Code or § 376 HGB. We shall be liable subject to the legal regulations when, as a consequence of a delay in delivery caused by us, the Purchaser is entitled to a claim that his interest in a further contract fulfilment has fallen into discontinuance.
We shall further be liable subject to the legal regulations if the delay in delivery is due to intentional or grossly negligent breach of contract; negligence on the part of our sales representatives or vicarious agents shall be incumbent upon us. Should the delivery delay be founded on an intentional or grossly negligent contractual violation on our part, our liability for compensation is limited to the foreseeable typically occurring damage.
We are also liable according to the statutory provisions, insofar as the delivery delay is based on the culpable violation of an essential contractual obligation; in this case, the liability for damages is limited to foreseeable, typically occurring damage. Essential contractual obligations are those which make the fulfilment of the orderly performance of the contract initially possible and the observance of which the contracting partner expects and can usually expect.
Moreover, we shall be liable in the event of a default in delivery for default damage of a maximum of 5% of the delivery value.
Further statutory claims and rights of the Purchaser are reserved.
4. Transfer of risk
Unless the order confirmation requires otherwise, "delivery ex works" is agreed.Risk is transferred to the Purchaser with the release of goods to the forwarding agent or freight carrier or any other person or institution charged with the execution of the shipment, namely even if there are part deliveries or we undertook to provide other services such as shipment costs.
Partial deliveries are admissible to the extent agreed, or insofar as this is reasonable for the Purchaser to accept, with regard to his interests.
5. Quality of the goods, colour/quantity deviations, liability for defects
Because our products are not counted in many cases but the amounts are determined using modern counting scales, there can be slight variations in quantity. We therefore reserve the right of commercial, minor variations in a quantity up to a maximum of +/- 10%. Although many of our specific apparel and textile products are resistant to dry-cleaning, we do not assume a general guarantee or warranty for characteristics of cleaning, washing, ironing resistance insofar as the order confirmation states does not state otherwise. In surface dyed fabrics, even if it is zapon-varnished (gold-coloured), no guarantee or warranty of characteristics for consistent colour fastness is assumed either insofar as the order confirmation does not state otherwise. Clothing accessories made of copper-containing materials can, in exceptional cases, result in colour changes in some reactive-dyed fabrics. Also changes may occur due to chemical reactions in the use chain.Insignificant usual product changes that take place due to circumstances as stated in Para. 5.1, do not lead to a deviation from the agreed quality of the goods. Rather they correspond to this. No defect exists therefore as defined in § 434 German Civil Code.In addition, we reserve the exercise of the rights under § 375 Para. 2 HGB.
As for the rest, claims of the Purchaser based on defects shall only exist, if the Purchaser has properly met his duties to examine and to make complaints in respect of defects immediately, in accordance to § 377 HGB.
At our option, the subsequent performance can be made by elimination of the defect (subsequent improvement) or by delivery of a new defect-free product. In the case of the elimination of defects or replacements, we shall bear all necessary expenditures necessary for this purpose, in particular transport, travel, labour and material costs, insofar as these are not increased by transfer to another location other than the place of fulfilment unless this transfer corresponds to its intended purpose.
If subsequent performance fails, the Purchaser is entitled at his option to require reduction of the purchase price(reduction) or the cancellation of the contract.
We are liable within the legal provisions, as far as the Purchaser asserts a claim for compensation which is based on intention or gross negligence by us or intention or gross negligence of our representatives or vicarious agents or is based on a culpable violation of an essential contractual obligation on our part. Essential contractual obligations are those which enable the fulfilment of the orderly performance of the contract initially possible and the observance of which the contracting partner expects or can usually expect.
As far as we are not accused of wilful breach of contract, our liability for claims for damages is limited to the foreseeable, typically occurring damage.
The liability for culpable injury to life, body or health remains unaffected; this also applies for liability according to the Product Liability Act. This does not affect the liability under the statutory provisions in case of fraudulent concealment of a defect or in making a quality guarantee.
Unless stipulated otherwise above, liability is excluded.
The limitation period for defect claims is 12 months beginning with the transfer of risk. Notwithstanding sentence 1, damages from injury to life, body or health or for other damages arising out of intent or gross negligence shall be in accordance with statutory provisions.
The limitation period in case of delivery recourse pursuant to § § 478, 479 German Civil Code remains unaffected; it is five years from the delivery of the defective item.
6. Joint and Several Liability
Any further liability for damages as provided in § 5 is - regardless of the legal nature of the asserted claim - excluded. This is in particular valid for indemnity claims due to faults on the occasion of the contract conclusion, due to other violations of obligation, or due to tortuous claims for replacement of damage in accordance with § 823 German Civil Code.
In case of claims for compensation, the limitation according to Paragraph 5.1 shall also apply in so far as the Purchaser demands reimbursement of unproductive expenses in place of claiming damages or performance.
As far as the liability for compensation against us is excluded or restricted, this shall also apply to the personal liability of our full-salary employees, workers, co-workers, representatives and vicarious agents.
7. Retention of title
The goods delivered by us remain our property until all payments from the business relationship including refinancing or promissory notes have been satisfied in full.
The Purchaser may neither pledge goods nor offer them as security. In case of seizure or other dispositions by third parties, we must be informed immediately so that we can contest such actions as per § 771 ZPO. As far as the third party is not in the position to refund the legal and extra-judicial costs of a legal action in accordance with § 771 ZPO, the Purchaser shall be legally responsible for the deficiency suffered to us.
The Purchaser is given the revocable right to sell the goods in the normal course of business unless the claims arising out of the resale have already been assigned to another party or parties or an advance assignment is excluded to us. The Purchaser assigns all claims arising out of the resale of the goods already now to us as collateral irrespective of whether the goods have been sold without or after processing. The Purchaser shall remain entitled to collect this receivable even after assignment. Our authority to collect the receivables ourselves remains unaffected. However, we agree not to collect the accounts receivable as long as the Purchaser complies with his payment obligations from the collected proceeds, does not default in payment and, in particular, no petition for the institution of insolvency or composition proceedings is filed or cessations of payment exist. But if this is the case, we shall be entitled to demand that the Purchaser informs us about assigned receivables and the debtor of same, provide us with all information required for collection, hand out the pertinent documents and inform the debtor (third party) of the assignment.
In the event that the Purchaser acts in breach of contract, in particular in the event of non payment of the due purchase price, we are entitled to take back the goods and the Purchaser is obliged to surrender them. Repossession of goods by us implies a withdrawal from the contract. After regaining possession of the goods, we shall be entitled to realise their value and shall offset the redemption proceeds after the deduction of costs incurred to the Purchaser against its liabilities.
By processing the goods, the Purchaser does not gain ownership in the completely or partially produced goods; the processing of the goods is exclusively carried out for us free of charge. If the object of the contract is processed with other objects, which are not our property, we shall acquire a co-ownership on the new subject for the value of the contract (amount of invoice including VAT) in proportion to the other processed objects at the time of processing. For the object arising from such processing for the rest the same applies as for the goods delivered under reservation.
If the object of the contract is inseparably mixed with other subjects, which are not our property, we shall acquire a co- ownership on the new subject for the value of the contract (amount of invoice including VAT) in proportion to the other mixed objects at the time of mixture. If the intermixing follows upon that way, that the subject of the Purchaser is taken for the main subject, it is considered to be agreed that the Purchaser shall transfer coownership to us on a pro rata basis. The Purchaser shall safeguard the resulting sole ownership or co-ownership for us without charge.
Should the practicable value of our securities exceed the receivables to be secured by more than 10%, we are obliged to release individual securities at our discretion if so requested by the Purchaser.
8. Applicable law, place of jurisdiction and place of fulfilment
German law applies exclusively for all contractual relationships with us; the application of the UN uniform law on the Sales of Goods (CISG) shall be excluded.
If the Purchaser is a merchant, the place of jurisdiction for all legal disputes is Maselheim/Biberach/Germany. However, we are also entitled to take action against the Purchaser at his court of jurisdiction.
Unless the order confirmation states otherwise, our place of business is the place of fulfilment.