Generals sales terms and delivery contitions of Schoeller Süssen GmbH

§ 1 Area of application, written form

1.1. Our general terms and conditions apply exclusively. They apply for entrepreneurs, corporate bodies organised under public law and special assets under public law. Any general terms and conditions of the contractual partner's conflicting with or deviating from these shall be expressly excluded unless we confirmed their validity in writing. Our general terms and conditions shall also apply if we effected delivery without reservation in knowledge of conflicting terms and conditions.
1.2. All agreements made between us and the contractual partner regarding the execution of this contract have to be put into writing. This applies especially to the transfer of guarantees.
1.3. These general terms and conditions also apply to all future contracts with this partner. Formerly valid terms and conditions become invalid herewith for this and future agreements.

§ 2 Quotes, contract documents, terms of contract, industrial property rights 

2.1. Our quotes are subject to change and may be cancelled at any time.
2.2. Due to the lack of other agreements, the agreed drawings, samples, descriptions and other documents will be considered contract documents, for which the material standards, designations and tolerances (DIN tolerances if applicable) customary in this line of business will apply. Indications of weight are herewith non-binding.
2.3. All information about our products, in particular the images, drawings, weights, dimensions and power ratings indicated in our quotes and publications are to be considered approximate average values that serve to describe and distinguish the goods rather than guaranteed qualities. If the limits for permissible deviations are not expressly stipulated in the order confirmation or otherwise,
deviations customary in this line of business are permissible.
2.4. Guaranteed qualities must be expressly identified as such. If not expressly agreed otherwise, provided samples are product descriptions, not quality guarantees.
2.5. If we provide technical documents, images, moulds, tools, samples or bidding documents, we will reserve the ownership as well as all industrial copyrights and property rights, even if the ordering party has borne the expenses for those in whole or in part. These may not be made accessible to any third party and must be returned immediately if the contract is not concluded.
2.6. The ordering party is not permitted to use the technical documents, images, moulds, samples and/or bidding documents to produce the sales item themselves or have it produced by a third party.
2.7. If the sales item is manufactured according to documents provided by the ordering party, the ordering party will be liable for the fact that the manufacture and /or delivery do not violate the industrial copyrights or any other rights of any third party.
2.8. In the case of sale by sample, the qualities of the samples are not guaranteed; the samples are non-binding specimens intended to give an approximate description of the goods. The same applies for analysis statements, unless certain values have been expressly guaranteed.
2.9. We will not assume any liability for the goods' suitability for the purposes intended by the buyer. Our application-technical consulting, information and recommendations are made to the best of our knowledge. Since the actual application of those is beyond our influence and it is impossible to predict all relevant conditions, any advice or recommendations given in person or in writing can only be non-binding. In particular, they shall not absolve the buyer from checking our products and goods for their fitness for the intended processes and purposes.
2.10. Any liability on our part based on the stipulations of the Product Liability Act will not be affected by the provisions cited above.

§ 3 Prices, terms of payment

3.1. If not provided otherwise, all prices are calculated for delivery from stock or ex works, excluding packaging, freight costs, customs, etc. or other additional costs, plus the applicable VAT.
3.2. Our prices are due net kilogramme of yarn, based on commercial weight. For orders of branded yarns, the prices valid on the day of order according to the price list shall be valid. We reserve the right to reasonably adjust our prices according to any cost increases due to changes in material and wage costs occurring after conclusion of the contract.
3.3. If not agreed otherwise, the invoice is payable within 30 days of the invoice date without deduction. If a cash discount was agreed in writing in the invoice, this must be taken into consideration by a credit memo in case of a cancellation.
3.4. We are not obligated to accept payment per cheque or bill of exchange. If we accept these, this shall be merely on account of performance. If bills of exchange or cheques are accepted, bill of exchange charges and discount will be at the expense of the buyer (or, as the case may be, at the expense of the ordering party in case of service contracts)
3.5. If we, after the conclusion of the contract, acquire knowledge of any conditions for which the customer is responsible and which call into question his creditworthiness (e.g. delay of payment), we are entitled to invoice the entire residual debt, also from other invoices, and demand immediate payment. This also applies to the previous acceptance of bills of exchange or cheques, which in this case shall be returned against cash payment.
3.6. If a term of payment is defined for the customer's payment, he shall be in default without reminder if the payment is not effected at the defined time..
3.7. Payment will only be deemed made when the amount in question has been credited to our account.
3.8. In case of any payment delay, we are entitled to charge interest on arrears at a rate of 8 percentage points above the applicable basic interest rate for the amount due. Both the seller and the buyer reserve the right to assert and prove a higher or lower amount of damages.
3.9. All discounts granted will be invalid after the occurrence of default..
3.10. In case of a payment delay, all open invoices will become immediately due. All discounts, bonuses, cash discounts and other reductions will become invalid. Furthermore, we reserve the right to withdraw from any existing contracts. We are also entitled to this right if we acquire knowledge of conditions that call into question the customer's financial reliability (credit-unworthiness,
petition for insolvency proceedings, the buyer exceeds his credit limit by releasing orders for goods, non-payment of due invoices, etc.).
3.11. Furthermore, we are entitled to demand cash payment before any subsequent deliveries, and to withdraw from the contract after a reasonable period of grace, or demand compensation for damages due to failure to fulfil obligations. If the buyer, in spite of a demand to this effect, is not willing to pay in advance or to provide a security for the payment he is responsible for, we have the right to withdraw from the contract, provided that we have not yet effected our performance.

§ 4 Time of delivery, partial delivery, right of withdrawal

4.1. The time of delivery begins on the date of the order confirmation. The indicated delivery times are non-binding and an approximation. Furthermore, for the indicated delivery period to begin as indicated, it is absolutely required that the customer provide on time all necessary documents and information, and settle or resolve all details of the order, in particular all technical questions. In case of change requests on the customer's side, the term of delivery will begin at the earliest with our conformation of the order modification.
4.2. We will assume no liability for delivery delays due to force majeure or other conditions beyond our control, in particular interruptions of transit and operations, strikes, lockouts, shortage of raw materials, wars.
4.2.1. If we are unable to deliver within the agreed time of delivery due to the circumstances listed in § 4.2., the time of delivery shall be extended appropriately.
4.2.2. If the delivery is delayed by circumstances beyond our control, in particular in the sense of § 4.2., for longer than the extension stipulated in § 4.2.1., we have the right to withdraw from the contract.
4.2.3. In case of delayed or incorrect supply to us by a third party which is beyond our control, we have the right to withdraw from the contract.
4.3. Should we be unable to deliver within the agreed period of time, the customer is obliged to declare upon our request and within a reasonable period of time whether he insists on delivery, or whether he, insofar as the conditions are met, wishes to withdraw from the contract and/or demands compensation instead of performance. Should the customer fail to comment, we have the right to withdraw from the contract after a reasonable period of time.
4.4. Should the customer cancel an explicitly placed order, we reserve the right to charge him 20% of the order value.

§ 5 Delivery and transfer of perils

5.1. If delivery was agreed, it will be free on rail.
5.2. If not stated otherwise in the order confirmation, delivery "ex central warehouse" is agreed. The shipment will always, even if the goods are delivered from a location other than the place of performance, and even if delivery free of carriage charges has been agreed, at the customer's own expense and risk. In all cases, we will be liable in the capacity of a forwarding agent if we effect the delivery ourselves, unless a limitation of liability according to the law, the contract or these terms and conditions applies. For shipments effected by ourselves, German carriage of goods law will apply, in particular the version of the ADSp respectively applicable.
5.3. On request of the customer, we will take out transit insurance for the delivery; the cost of which will be borne by the customer.

§ 6 Damage claims and product liability

6.1. Any goods delivered must be inspected by the customer immediately. Should any flaw or defect be detected, the customer is obliged to inform us in writing without delay. If the customer fails to notify us, the goods will be considered approved, unless the flaw or defect is not obvious. If such a flaw or defect becomes apparent at a later time, the customer is obliged to inform us in writing without delay, at the latest 14 days after the flaw or defect was detected; otherwise the goods will be considered approved in spite of the flaw or defect. §§ 377, 378 HGB remain unaffected.
6.2. In the event of any flaw or defect, the choice of supplementary performance will lie with us, taking into consideration the type of flaw or defect and the customer's legitimate interest.
6.3. If supplementary performance is demanded, we are only obliged to bear all expenses, in particular transport, travel, labour and material costs insofar as they are not increased by the fact that the item has been sent or taken to a place other than the customer's headquarters or subsidiary to which it was delivered. This does not apply in case of a recourse according to § 478 BGB.
6.4. Any claims for damages on the part of the customer are excluded unless arising otherwise from the stipulations of § 6.5. and §6.6. or the contractual obligations.
6.5. Our liability in the event of wilful intent or gross negligence on our part or on the part of a vicarious agent of ours, or any loss or damage resulting from culpable injury to life, body or health shall be as specified in the statutory regulations.
6.6. In the event of any culpable breach of an essential contractual obligation or a cardinal obligation, the amount of our liability shall, except in the cases specified in § 6.5., be as specified in the statutory regulations, however, the liability shall be limited to the damage typical in the case of a contract of the kind in question.
6.7. The limitation of liability specified in § 6.4. – § 6.6. also applies insofar as contribution claims according to §478 BGB are made against us in the capacity of a supplier.
6.8. For the sale of used goods, any claims for damages are excluded.
6.9. The regulations according to § 6.4. to § 6.6. will not apply to any potential claims according to 1, 4 Product Liability Act. Unless the limitation of liability according to § 6.6. applies to claims from the manufacturer's liability according to § 823 BGB, our liability according to § 823 BGB is limited to the compensation of the insurance. If this does not or not entirely apply, we are liable to pay the amount covered.
6.10. Insofar our liability is excluded or limited, this also applies to the personal liability of our employees, staff, representatives and vicarious agents.
6.11. Warranty shall be excluded if the customer has processed or sold the sales item after he detected or should have detected the flaw or defect.
6.12. Natural wear and damage due to improper treatment, handling or storage are excluded from indemnification.

§ 7 Supplementary stipulations for international contracts

If the customer's headquarters are located in a country other than the Federal Republic of Germany, and if the respectively applicable version of the UN  Convention  on  Contracts  for  the  International  Sale  of  Goods (CISG) applies, the following shall apply:
7.1. Any changes to or terminations of contracts have to be made in writing.
7.2. We shall be liable to the customer for damage compensation according to statutory regulations only if a contract violation is caused by wilful intent or gross negligence on our part or on the part of any representative or vicarious agents of ours. Insofar as we violate an essential contractual obligation, we shall assume liability according to statutory regulations.
7.3. If the sales items delivered are contrary to contract, the customer has the right to terminate the contract or demand replacement delivery only if any claims for damages against us are excluded, or if it would be unreasonable for the customer to use the goods that are contrary to contract and to claim the remaining damages. In such cases, we are first of all entitled to remedy the defect. If we fail to remedy the defect, and/or if the remedy of the defect causes an unacceptable delay, the customer has the right to choose whether he wishes to declare the termination of the contract or demand a replacement delivery. The customer shall also have this right if the remedy of the defect causes unacceptable inconvenience, or if there is any uncertainty as to whether the customer's out-of-pocket expenses will be refunded.
7.4. In case of delivery to foreign countries, we will assume no liability for the permissibility according to the local regulations of the intended purpose of the delivered item as contracted. Also, we will not be liable for any interest accrued there.
7.5. In case of delivery to foreign countries, we will assume no reliability for delivery delays caused by government measures, in particular import or export restrictions.
7.6. If the fulfilment of the offered transactions, deliveries or performances requires a license according to German or European foreign trade legislation or U.S. export control law, the fulfilment of the contract is subject to the condition precedent. If this license is not granted or observed, or if any auxiliary conditions regarding the content are not met, this will absolve the seller from his obligation to fulfil the contract. The buyer is obliged to constructive collaboration in the licensing procedure and in particular to provide all required documents. The buyer will bear any costs and fees hereby incurred.
7.7. The observance and realisation of the relevant stipulations of foreign trade legislation (e.g. export control stipulations, import licenses, currency transfer licences, etc.) and other laws applicable in countries other than the Federal Republic of Germany falls exclusively in the area of responsibility of the customer. Any information on foreign trade provided by the seller to the best of his knowledge are non-binding. This shall not absolve the buyer from his obligation to check for himself the observation of the foreign trade regulations as regards the products.

§ 8 Reservation of title

8.1. We reserve title to the sales item until receipt of all payments arising from the business relationship with the customer. Claims arising from the business relationship also encompass interest, ancillary claims and possible costs any legal action, as well as costs of intervention in case of seizure of the sales item by a third party. Cheques and bills of exchange will only be considered paid when they are honoured.
8.2. The customer has the right to sell the item in his ordinary course of business. In case of such a resale, the customer assigns to us, until all our claims have been met in full, all claims against his own customers arising from the resale of the item. We accept this assignment. This assignment will also include and encompass any balance claims on an agreed open account. Until revocation of this entitlement by us, the customer is entitled to collect the assigned claims in his own name.
8.3. On our request, the customer is obliged to inform us of the names of his customers against whom he has acquired claims through resale of the item, as well as of the amounts owed by these customers and to allow us to inspect his books and accounts in respect thereof. The customer is obliged to inform us without delay of any seizure of the item or of any such intervention by a third party.
8.4. Any processing or transformation of the item by the customer shall be deemed done on our behalf. Should the item be processed together with other items not belonging to us, we shall have co-title to the new item thus created in the same proportion as that between the value of the item (total invoice amount including VAT) and the value of the other items involved at the time of processing. The same shall apply in case of any combination of the item with other items not belonging to us.
8.5. Should the realisable value of the securities provided for us exceed our claims by more than 20%, we are obliged, on request of the customer, to release securities of our choice to the extent of the amount exceeding 20%.
8.6. If, in the event that the law of another country should apply, our reservations of title should not be effective in that country or if, for example, in addition to the contractual agreement, they should also require to be registered, the customer shall have a duty to assist, at his expense, in all necessary measures and in particular to make all declarations as may be necessary on his part in order to render our reservation of title effective or in order to provide us with security which is equivalent to reservation of title.

§ 9 Comission orders

9.1. If wage labour, materials, semi-finished goods are provided by the ordering party, we will not have the duty to check the parts provided. The ordering party will be responsible  to check the suitability for the purpose specified in the contract.
9.2. Should a flaw or defect of a delivered product (9.1.) be the reason for a part manufactured by us being faulty or unusable, this will not absolve the ordering party from the duty to pay the manufacturing costs. The ordering party will bear any costs, and indemnify us from any claims for damages of third parties, that arise from any loss or damage caused to us by the unsuitability of such provided parts or materials for the intended purpose..

§ 10 Data storage

10.1. We store data accrued within the scope of our business relationships and communicate them to third parties if necessary. The customer hereby declares his consent.
10.2. We observe the regulations of the German Data Protection Act, the German Telemedia Act and all other applicable data protection regulations.
10.3. We use inventory data exclusively for managing and processing the order/the contract. We store and handle all customer data under observance of the applicable stipulations of the German Data Protection Act (BDSG) and the German Telemedia Act (TMG).
10.4. We will not make personal or company data, including postal addresses and e-mail addresses, accessible to any third party. Excluded from this are our service partners who require data transmission in order to be able to process orders (e.g. the forwarding agent responsible for the delivery and the bank responsible for handling the payment). In such cases, however, the amount of data transmitted will be limited to the required minimum.

§ 11 Delivery of goods and complaints

11.1. In case of a wrong delivery, the goods in question are to be returned to Schoeller Süssen GmbH, c/o WLC Würth Logistik GmbH & Co. KG, Wilhelm Maybachstr. 8A, Gate 28-32, 74196 Neuenstadt, Germany.
11.2. Complaints are to be addressed to Schoeller Süssen GmbH, Bühlstr. 14, 73079 Süßen, Germany with proof of delivery.

§ 12 Place of performance, jurisdiction, applicable law

12.1. Forthe business relationship and all legal relationships, exclusively German law will apply. CISG does not apply.
12.2. The place of performance for all deliveries and services, as well as the place of jurisdiction is D-73079 Süssen. Furthermore, the seller has the right to assert his own claims at the place of jurisdiction of the buyer. The customer is not allowed to put forward counter-claims or to offset against the claim at any courts other than the court of the original claim.
12.3. For contracts with business people, corporate bodies under public law, special funds under public law and with foreigners who have no place of jurisdiction in Germany, the place of jurisduction is D-73079 Süssen. However, we shall have the right to bring legal action against the customer at his own place of jurisdiction.

§  13 Severability clause

Should any clauses or individual phrases of this contract be or become invalid, the validity of the remaining clauses of the document will remain unaffected. In this case, the contracting parties are obliged to replace the invalid clause with a clause closest to the commercial intent on which the parties would have agreed, had they known about its invalidity.