GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF FD TEXTIL GMBH & Co KG
§ 1 Scope and Written Form
Our deliveries, services and offers are made exclusively on the basis of these General Terms and Conditions, even if the customer has communicated its own General Terms and Conditions when placing the order. The customer’s General Terms and Conditions are hereby expressly rejected.
Our General Terms and Conditions also apply to all subsequent transactions, even if no further reference is made to them when such transactions are concluded.
Verbal agreements as well as amendments and supplements to contracts concluded with us, regardless of whether they concern main or ancillary conditions, are only valid if confirmed by us in writing. Any waiver of the requirement for written form must also be made in writing.
§ 2 Offer and Conclusion of Contract
Our offers are always subject to change and non-binding.
All orders and acceptance of orders require our written confirmation in order to become legally effective. This also applies to additions, amendments or ancillary agreements.
Drawings, illustrations, dimensions, weights or other performance data are only binding if this has been expressly agreed in writing.
§ 3 Delivery and Performance Times
Dates and delivery times are only binding if confirmed by us in writing.
Delays in delivery and performance due to force majeure and events that make delivery significantly more difficult or impossible for us for more than a temporary period – including in particular strikes, lockouts, official orders, failure to receive supplies on time, etc., even if such circumstances occur at our suppliers or their subcontractors – are not our responsibility, even where binding deadlines and dates have been agreed. Such circumstances entitle us to postpone the delivery or performance for the duration of the impediment plus a reasonable start-up period, or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled.
If the impediment pursuant to para. 2 sentence 1 lasts longer than three months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery period is extended pursuant to para. 2 sentence 2 or we are released from our obligation, the customer may not derive any claims for damages from this. We may only invoke the aforementioned circumstances if we notify the customer without delay.
Our delivery obligations only apply provided that the customer fulfils its obligations properly and on time.
In the event of a delay in delivery, the customer is only entitled to withdraw if it has granted us an additional period of four weeks.
Claims for damages due to delayed delivery are excluded or limited in accordance with the provisions of § 10 (Damages/Reimbursement of Expenses). The exclusion or limitation set out in § 10 (Damages/Reimbursement of Expenses) does not apply to fixed-date transactions.
If the customer defaults on acceptance or otherwise breaches its obligations to cooperate, we are entitled to claim compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased goods also passes to the customer at the time the customer defaults on acceptance.
We have the right to make early deliveries.
We are entitled to make partial deliveries and provide partial services at any time, unless the partial delivery or partial service is of no interest to the customer.
§ 4 Transfer of Risk
The risk passes to the customer upon handover of the goods to the customer or to the party commissioned with transportation, but no later than when the goods leave our warehouse. This applies regardless of who bears the shipping costs and also if the seller or its assistant carries out the transportation itself.
If the goods are ready for dispatch and shipment is delayed for reasons for which we are not responsible, the risk passes to the customer upon receipt of notification that the goods are ready for dispatch.
If we follow shipping instructions issued by the customer, we do so without assuming any responsibility of our own, solely on behalf of, for the account of and at the risk of the customer, unless we act intentionally or with gross negligence.
§ 5 Prices
The prices calculated in euros on the day of delivery shall apply. These prices are ex works or ex warehouse and are net prices excluding VAT.
Postage or freight and packaging costs as well as any costs for insuring the goods will be invoiced separately. The method of shipment is selected at our discretion.
Sketches, designs, preliminary materials, proof prints, samples and similar preparatory work initiated by the customer will be invoiced even if no contract is subsequently concluded.
If additional costs arise after conclusion of the contract as a result of amendment or supplementary requests by the customer, these will be invoiced separately.
§ 6 Due Date of the Purchase Price and Payment Terms
Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) within 10 days of the invoice date.
Payment shall only be deemed to have been made when we are able to dispose of the amount. If we accept bills of exchange or cheques, payment shall only be deemed to have been made once the amount has been credited to our account. If a bill of exchange is accepted, the customer shall bear and immediately pay the discount charges and all other expenses, including the VAT applicable thereto. We accept no responsibility for bills of exchange or cheques being presented, protested or collected on time, or for the customer being notified in good time or the bill of exchange being returned.
Notwithstanding any contrary instructions from the customer regarding allocation of payments, we are entitled to apply payments first to older debts. If costs and interest have already been incurred, we are entitled to apply the payment first to costs, then to interest and finally to the principal obligation.
If the customer defaults on payment, we are entitled to charge default interest at the applicable bank interest rates and bank charges for outstanding business loans, but at least 8% p.a. above the base interest rate pursuant to § 1 of the German Discount Rate Transition Act (Diskont-Überleitungsgesetz) of 9 June 1998. If we are able to prove greater damage caused by the delay, we are entitled to claim such damage unless the customer proves that we have incurred less damage or no damage at all.
In the event of non-payment when due, we are entitled, where the requirements of § 353 HGB are met, to charge maturity interest of 5% p.a.
If the customer is more than four weeks in arrears with its payment obligations, fails to comply with the obligations arising from the retention of title, suspends payments or applies for the opening of judicial or extrajudicial insolvency proceedings, all liabilities shall become immediately due, including those for which we have accepted cheques or bills of exchange with a later maturity date. If we have not yet delivered in such a case, we are also entitled to demand advance payment or security, even if the purchase price would otherwise become due at a later date.
If an order requires the provision of special materials or unusually large quantities of materials, or if special advance services are required on our part, we are entitled to demand an appropriate advance payment in each case.
Advance payments made by the customer shall not bear interest.
§ 7 Set-Off, Right of Retention, Reduction by the Customer
The assertion of a right of retention against our claims and the set-off of counterclaims are only permissible if the counterclaims underlying the right of retention or the counterclaims being set off are undisputed or have been finally established by a court of law.
§ 8 Retention of Title
All goods delivered by us remain our property until all claims – including future claims – arising from the business relationship with the customer have been settled. This also applies to balance claims from current accounts to which we are entitled against the customer.
If we have agreed with the customer that the purchase price debt will be paid by means of the cheque/bill of exchange procedure, the retention of title also extends until the bill of exchange accepted by us has been honoured by the customer and does not expire when the cheque received is credited to us.
The customer is entitled to resell goods subject to retention of title in the ordinary course of business. The customer hereby assigns to us, until our claims have been paid in full, the claims against its customers arising from such resale, and we hereby accept the assignment. The customer is entitled to collect the claims from its customers as long as we do not revoke this authorisation. The customer is not entitled to make any other assignments of the goods subject to retention of title – in particular blanket or global assignments – transfers by way of security or pledges.
Any processing or transformation of the purchased goods by the customer shall always be carried out on our behalf. If the purchased goods are processed together with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the value of the purchased goods relative to the other processed items at the time of processing. In all other respects, the same provisions that apply to goods delivered subject to retention of title shall apply to the item created by processing.
At our request, the customer must notify its customers of the assignment and provide us with all statements and documents necessary to assert the claims.
In the event of conduct by the customer contrary to the contract, in particular in the event of default in payment or justified doubts regarding its solvency (e.g. insolvency or filing for insolvency proceedings), we may prohibit the resale or use of the goods subject to retention of title and repossess them. The customer agrees that employees of our company or persons commissioned by us for this purpose may enter its storage and business premises for this purpose. A request for surrender of the purchased goods does not require us to withdraw from the contract. Repossession or seizure by us of the goods subject to retention of title shall only constitute withdrawal from the contract if, unless dispensable pursuant to § 323 para. 2 BGB, we have unsuccessfully granted the customer a reasonable period for performance and expressly declare the withdrawal in writing; the same applies to seizure of the goods subject to retention of title by our company. If the conditions set out in sentence 1 of this paragraph are met, the customer’s authority to collect the claims assigned to us shall expire.
We undertake to release the securities referred to above, at our discretion, insofar as their current value exceeds the claims to be secured by more than 20%.
The customer must store the goods delivered subject to retention of title separately from other goods. The customer is obliged to notify us immediately by registered letter of any access by third parties, e.g. seizure of the goods subject to retention of title or of the claims assigned to us. If such third-party access causes damage to the goods subject to retention of title, the customer shall compensate us for such damage. The customer shall also bear all costs of any intervention by us to enforce our ownership rights.
The customer is obliged, at its own expense, to adequately insure the goods delivered subject to retention of title against insurable damage. Claims against insurers arising from an insured event are hereby assigned to us by the customer up to the invoice value of the damaged goods subject to retention of title.
§ 9 Warranty
The customer must inspect preliminary and intermediate proofs sent for correction immediately upon receipt and notify us in writing of any defects within a period of 3 days.
The customer must inspect the delivered goods immediately upon receipt and notify us in writing of any visible defects within four days; hidden defects must be reported in writing within four days after the customer or an assistant of the customer becomes aware of them.
A defect shall not be deemed to exist in the event of only an insignificant deviation from the agreed quality or only an insignificant impairment of usability. Likewise, if the customer or third parties improperly carry out modifications or repair work, this shall not constitute a defective delivery.
Where deviations from the original in colour reproductions or minor deviations between proofs and the production print are technically unavoidable, these shall not constitute a defect and shall not give rise to liability on the part of the seller.
We shall only be liable for the absence of characteristics that the customer may expect on the basis of public statements made by the seller, the manufacturer (§ 4 paras. 1 and 2 ProdHaftG) or its assistant, particularly in advertising or labelling concerning specific characteristics of the item, if the seller was aware of the statement.
If the customer demands subsequent performance due to defects in goods delivered by us, in the form of rectification or replacement delivery, we shall have the right to choose whether subsequent performance is provided by rectification or replacement delivery.
The seller shall not be required to bear the expenses necessary for subsequent performance, in particular transport, travel, labour and material costs, insofar as such expenses are increased because the purchased item was moved after delivery to a location other than the customer’s place of residence or commercial establishment, unless such relocation corresponds to the intended use of the item.
The customer may not withdraw from the purchase contract due to defects. The right to a reduction in price remains unaffected.
The customer’s statutory rights of recourse against the seller shall only exist insofar as the customer has not entered into any agreements with its own customer that go beyond the statutory warranty claims.
In all other respects, § 10 (Damages) applies to claims for damages. Any further claims or claims other than those regulated in this § 9 against the seller and its vicarious agents due to a material defect are excluded.
Claims for material defects shall become statute-barred after twelve months. The period begins upon transfer of risk pursuant to § 438 para. 2 BGB. The above provisions shall not apply insofar as the law, § 479 para. 1 BGB (right of recourse), provides for longer periods.
Excess or short deliveries of up to 10% of the total order volume may not be objected to by the customer. The quantity actually delivered will be invoiced in each case.
§ 10 Damages, Reimbursement of Expenses
Claims for damages, irrespective of the legal basis, with the exception of claims for damages under §§ 1 and 4 of the German Product Liability Act, are excluded. Sentence 1 shall not apply if the damage was caused intentionally or by gross negligence or is based on the absence of a characteristic of the item for which we have provided a guarantee; this shall not apply insofar as claims for compensation between several manufacturers pursuant to § 5 of the German Product Liability Act are asserted against the seller. In the event of a breach of material contractual obligations or injury to life, body or health, liability shall also apply in cases of ordinary negligence.
Liability is limited to foreseeable damage typical of the contract. This limitation shall not apply if legal representatives or senior employees of our company caused the damage intentionally or through gross negligence or caused breaches of material contractual obligations, or if we are liable for injury to life, body or health or due to the assumption of a guarantee for the existence of a particular characteristic of the item.
A claim for reimbursement of expenses is excluded under the conditions specified in para. 1 for claims for damages.
The above provisions do not entail any change in the burden of proof to the detriment of the customer.
§ 11 Storage and Insurance
The seller is not obliged to retain templates, raw materials, printing media and other reusable items as well as semi-finished and finished products beyond the date of delivery of the goods without an express prior agreement and corresponding remuneration. This also applies to items provided to the seller by the customer.
The seller shall only be liable for the loss, damage or destruction of such items provided by the customer insofar as the seller caused such loss, damage or destruction intentionally or through gross negligence.
Items provided to the seller by the customer are not insured by the seller. If the customer wishes such items to be insured, the customer itself must arrange for appropriate insurance.
§ 12 Ownership and Copyright
The operating materials used by the seller to manufacture the ordered goods, in particular templates, films and printing stencils, remain the property of the seller and shall not be handed over to the customer. This also applies if the production of such items is invoiced separately to the customer.
The customer shall be liable to the seller for ensuring that the execution of its order does not infringe any rights, in particular third-party copyrights. The customer shall indemnify the seller against all claims asserted against the seller by third parties due to infringement of their rights.
§ 13 Place of Performance, Jurisdiction, Partial Invalidity
These General Terms and Conditions and the entire legal relationship between our company and the customer shall be governed by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The place of performance is Neuss.
If the customer is a merchant within the meaning of § 38 para. 1 ZPO, Neuss shall be the place of jurisdiction for all mutual claims and obligations arising from the business relationship, including claims relating to bills of exchange and cheques as well as disputes concerning the formation and validity of the contractual relationship. Each contracting party may also sue the other party at its general place of jurisdiction.
Should one or more provisions of these General Terms and Conditions or of the contracts of which they form part be or become invalid, this shall not affect the validity of the remaining provisions of these General Terms and Conditions or contracts. Should the invalidity make additions to or interpretations of these General Terms and Conditions or contracts necessary, these shall be made in such a way as to preserve the economic purpose of the provision that has ceased to apply.
FD Textil GmbH & Co KG Düsseldorf, February 2024