Terms and Conditions of the KARL MAYER STOLL TEXTILMASCHINENFABRIK GMBH for business UNIt stoll for transactions with companies
I. Sphere of validity
- Our General Terms and Conditions of Business below shall apply for business transactions with persons who, when entering into a contract when the contract is signed, are exercising their commercial trade or profession as an individual (Businessman).
- Our goods, services and offers are made solely on the basis of the following T&Cs. If the Customer’s T&Cs differ from, or are contrary to, our T&Cs they are hereby expressly rejected. Our T&Cs shall also apply in those cases in which we supply without reservation although we are aware that the Customer’s T&Cs differ from, or are contrary to ours.
- Amendments of, or supplements to, these T&Cs by our employees shall be subject to written confirmation by the management and they shall only apply for that transaction for which they were agreed.
- Our T&Cs shall also apply for future goods and services supplied as part of an on-going business relationship, provided that we do not confirm them with different T&Cs.
II. Offers and Conclusion of contract, Written form, The Customer’s duty of disclosure
- Unless they expressly state otherwise, our offers shall be made subject to change without notice and they shall be non-binding.
- We shall reserve all title rights and copyrights to leaflets, diagrams, cost estimates, drawings and other offer documents (hereinafter known as “Documents“). These documents must not be used or reproduced or made accessible to third parties without our prior consent. In the event that an order is not placed they are to be returned to us immediately.
- The Customer shall be responsible for the samples, models, drawings and other information provided by him being suitable and accurate to dimension, commensurate with the actual conditions as well as not being in breach of third party rights. If climatic conditions are exceptional where the machine is to be used, the Customer shall have to point this out to us when the order is placed. In the event that the above duties are breached, the Customer shall have to compensate us for the (additional) expenditure and damages incurred as a result therefrom unless he is not responsible for this breach of duty.
- A contract shall only materialise with our Customers if we accept the Customer’s order in writing by sending him an order confirmation or by supplying the goods and services. The period granted within which we have to accept the order shall be four weeks from receipt of order.
- Guarantees of quality or guarantees of durability, agreements on quality or declarations on the use of the goods as well as side agreements made by our employees prior to our order confirmation shall only be valid if they have been confirmed in writing by our management.
- Unless expressly agreed otherwise, our prices shall be for delivery ex works excluding packing and transport and not including the cost of setup, assembly and training the operators.
- Our prices do not include value added tax; this will be shown separately in the invoice at the rate in force on the date on which the invoice is raised.
- We shall reserve the right to amend the prices accordingly if, after the contract has been concluded, our costs increase or decrease in particular as a result of collective bargaining agreements, changes in the prices of materials and electricity or changes in the price of transportation, if goods are to be supplied more than two months after the contract is signed. Proof of price increases shall be shown to the Customer upon request.
IV. Terms and conditions of payment
- Provided that the order confirmation does not state otherwise, the purchase price shall be payable in full within 30 days from the date of invoice.
- Payment shall only be regarded as being paid if we are able to dispose of the amount irrevocably.
- We shall also be entitled to demand interest on the invoiced amount in accordance with the statutory regulations if the payments are deferred by us. Interest will not be paid by us on payments made by the Customer in advance or on account.
V. Delivery period
- Unless agreed otherwise, the delivery periods named by us shall only apply as approximations. We shall observe them if possible.
- Compliance with the delivery periods and dates shall be subject to the reservation that we are supplied by our suppliers with the correct goods on time.
- Delivery periods shall begin on the date of the order confirmation, but not, however, before all the preconditions for our performance have been satisfied by the Customer, in particular not before all the documents, permits and clearances to be procured by the Customer have been furnished as well as before a payment which is payable prior to delivery as agreed, has been paid.
- The delivery periods will have been satisfied if, by the time they expire, the goods have left the works or the Customer has been notified that they are ready for dispatch.
- The existence of an instance of force majeure, in particular disruptions in our business operations, labour disputes, unforeseeable operational disruptions, official interference, national restrictions on imports and exports, shortages in the raw materials required by us, disruptions in the power supply etc. not only affecting us but also our suppliers shall extend the delivery period accordingly, provided that such hindrances affect the completion or delivery of the purchased item. The Customer shall be notified of the beginning and end of such hindrances. If an instance of force majeure is not only temporary in nature, but renders our performance permanently impossible as a result, each Party shall be entitled to withdraw from part or all of the contract. The Customer shall not be entitled to assert compensation claims for damages as a result of such a withdrawal.
- If we are in default with delivery, the Customer shall be entitled to demand compensation for any loss he may have incurred as a result of the delay for each full week of default in addition to his claim for performance. This claim is, however, limited to 0.5 % of the value of the goods supplied in the consignment concerned not, however, to exceed 5% of the value of the supplied goods. The right of the Customer to withdraw from the contract after a reasonable subsequent set period of time has elapsed and / or to demand compensation for damages on account of non-fulfilment in accordance with the arrangement in Paragraph X shall not be affected.
- If, after we are already in default, the Customer sets us a reasonable subsequent period to render performance, which must be at least 4 weeks, he shall, after this period of time has elapsed unsuccessfully, be entitled to withdraw from the contract. Subject to the statutory preconditions of Section 323 Para 2 of the German Civil Code [BGB] a period of time will not have to be set. The Customer may only assert compensation claims for damages subject to the preconditions in Paragraph X.
VI. Passing of risk and Dispatch, Default in taking delivery, Packing
- Unless agreed otherwise in an individual case, all consignments shall be EXW (Incoterms 2010) ex our works. The risk of having to pay the price in spite of loss or damage shall pass over to the Customer as soon as the consignment has been handed over to the person transporting the consignment or as soon as the consignment has left our works for the purpose of dispatch, and to be more precise, even in those cases in which we, by way of exception, have taken over the provision of additional services as well such as the cost of dispatch, delivery or setup for example. The same shall apply mutatis mutandis for part deliveries with regard to each individual delivery.
- If the Buyer is in default with taking delivery of a consignment, risk shall pass over to him when he enters into default with taking delivery, and no later than when the Customer is notified that the consignment is ready for dispatch.
- If, after a reasonable subsequent period of time set by him of at least 4 (four) weeks has elapsed, he refuses acceptance without justification or expressly states before this period of time has elapsed that he does not intend to approve acceptance, we may withdraw from the contract and demand compensation for damages amounting to 20% of the contractual amount instead of performance. The Customer shall reserve the right to prove that we have not suffered a loss or the loss suffered by us is less, and we shall reserve the right to prove that we have suffered a greater loss.
- If the Customer is in default with taking delivery of goods for more than 2 (two) weeks, we shall be entitled to demand a lump sum as compensation for default amounting to 0.25% of the value of goods supplied for each full week of delay, not exceeding 10% of the value of the goods supplied overall. The Customer shall reserve the right to prove that we have not suffered a loss or the loss suffered by us is less, and we shall reserve the right to prove that we have suffered a greater loss.
- Packing will be taken back by us at the place of delivery during normal working hours. The packing is to be emptied completely, and returned free of foreign objects and contamination with foreign materials and sorted by packing type. In the event that the above-named duties are not fulfilled, we shall be entitled to invoice the Customer for the additional costs incurred by us as a result of cleaning and sorting.
- We shall be entitled to part-deliveries, provided that they are reasonable for the Customer.
- Each part-delivery shall be invoiced by us separately and is to be paid by the Customer in accordance with our terms of payment. Additional costs incurred by part-deliveries arranged by us shall be for our account.
- In spite of T&Cs stating otherwise, we shall be entitled to offset the Customer’s payments first of all against his older debts. If costs and interest have already been incurred, we shall consequently be entitled to offset payment against costs, then interest, and lastly against the principal claim.
- We are not obliged to accept drafts or cheques. If we do accept them we shall only do so on account of performance. Bill tax, bank, discount and collection fees shall be for the Customer’s account and shall be payable immediately after settlement.
- In so far as the Customer has to open a documentary sight credit, the Uniform Customs and Practice for Documentary letters of credit, Revision 2007, ICC-Publication No 600 shall apply.
- If the Customer fails to fulfil his payment obligations, in particular if he fails to honour a cheque or draft, or stops making his payments, or falls into arrears for more than 14 days with undisputed accounts in spite of being sent a payment reminder, or if enforcement measures against him are unsuccessful, we shall be entitled to demand performance or the furnishing of securities concurrently for all contracts and after a reasonable subsequent period of time set for the Customer to do so has expired unsuccessfully, we shall be entitled to withdraw from these contracts and to demand compensation for damages instead of performance.
- In the event that the Customer is in default with payment for more than 14 days, we shall be entitled to make the entire remaining debt payable, unless the Customer is only in default with a minor part of our claim.
- The Customer is only allowed to offset with those counter claims which are not contested by us, have been recognised by us or adjudicated by a court having jurisdiction. Subject to the same preconditions he shall, given this, be entitled to exercise a right of retention when his counter claim is based upon the same contractual relationship.
VIII. Reservation of title
- All goods supplied by us shall continue to be our property until all liabilities under the business relationship including claims materialising in the future have been fulfilled in full. Under open account arrangements the reservation of title shall be regarded as a security for our balance of account. If payment is made by cheque or draft, our account shall only be fulfilled in those cases in which the corresponding amount has been irrevocably credited to us and no more rights of recourse can be asserted against us.
- The Customer is obliged, when delivering to addresses outside Germany in particular, to submit all the necessary declarations, make all necessary applications and to take all other measures necessary and appropriate to secure our title. Should the reservation of title not be valid or enforceable in accordance with the law of the country in which the goods are situate, the security closest to it in accordance with the law of that country shall be regarded as having been agreed instead.
- The Customer may use and make use of the goods supplied in the course of his business operations. He shall have to keep the goods in a proper condition and secure them in accordance with the regulations of the country in which they are situate. The Customer must allow the necessary maintenance and inspection work to be carried out at his expense in good time. In the event that the goods are damaged, the Customer shall assign the claims to which he is entitled against the damaging party to us here and now.
- The Customer may only resell the goods supplied by us subject to reservation of title if the following preconditions have been satisfied:
In the event of a resale the Customer shall assign here and now all accounts and rights accruing to him from a resale to us in full by way of security, as long as he is not in default with his payment obligations to us, and is entitled and obliged to collect the assigned accounts. Our authority to collect these accounts ourselves shall not be affected by this. We shall, however, not collect the accounts as long as the Customer fulfils his payment obligations to us. If the Customer is in default with payment, he stops making his payments or if an application has been filed to open composition or insolvency proceedings or if such proceedings have been rejected on account of insufficient assets, the Customer shall be obliged to notify the debtor of the assignment and hand over all documents to us in addition to passing over all information required to assert a claim for our account.
- We have expressly agreed in writing to the goods being resold, or we have sold the goods to the Customer for the purpose of resale.
- The Customer is not in default with his payment obligations to us.
- The goods are resold in the course of the Customer’s normal commercial transactions.
- The Customer’s account created by a resale may be assigned to us without restriction.
- If the Customer collects accounts assigned to us without being entitled to do so, or if he turns them to account by other means, we shall be entitled to the collected amount or the sales proceeds achieved in full.
- The Customer must not assign the goods subject to our reservation of title by bill of sale as a security or pledge them without our express written consent. He shall be obliged to inform us immediately in writing of a levy of execution on the goods by third parties and all other impairment of our rights so that we can take action against such measures, in particular take third party proceedings against execution in accordance with Section 771 of the German Code of Civil Procedure [ZPO]. In so far as the third party is not in a position to refund us the court costs or out-of-court costs incurred by us in taking legal action in accordance with Section 771 ZPO, the Customer shall be liable for the shortfall incurred by us.
- The Customer is obliged to take out adequate insurance cover for the goods owned by us at replacement value at his own expense against fire damage, water damage and other damage and theft.
- We shall undertake to release the securities to which we are entitled in so far as their marketable value exceeds the accounts to be secured by more than 10%. The selection of the securities to be released shall be incumbent upon us.
IX. The Customer’s rights if there are defects, The duty of inspection and notification of defects
- Unless agreed otherwise, the condition of the goods owed shall be shown only by our product specifications in force when the contract is signed.
- The Customer shall have to inspect the goods immediately upon delivery, provided that this is feasible in the course of his proper business, and notify us in writing of any defects which may be identified as a result, but no later than seven days from delivery. The Customer shall have to notify us in writing immediately of defects which cannot be identified in a Goods Inward inspection necessary in the ordinary course of business, but within seven days from the discovery of the defect at the latest. Otherwise the consignment shall be regarded as having been approved, unless the defect was maliciously concealed by us.
- The Customer’s rights in the event that there are defects shall be determined solely by the following provisions. The Customer shall not be entitled to any other claims.
- We shall not accept any liability for that damage and defects which is attributable to:
- normal or excessive wear and tear, faulty or negligent use by the Customer or a third party (such as, for example, excessive loads, defective assembly and / or start-up);
- unsuitable working materials or substitute materials;
- defective building work, unsuitable foundation, the impact of inclement weather, chemical, electro-chemical or electrical factors (e.g. current fluctuation), provided that these factors are not attributable to a fault of ours.
- Samples, models, drawings and other information and spe-cifications provided by the Customer, in particular if they are unsuitable and/or not accurate to dimension or compa-tible with the actual circumstances.
- If there is a quality defect, the cause of which already existed at the point in time at which risk passed over, and which was notified in accordance with Paragraph IX. No (2), we shall, as we choose, carry out a cure by rectifying the defect or by supplying a fault-free part in return of the defective part. Compensation claims for damages shall only exist in accordance with Paragraph X.
- We shall only vouch that the goods themselves are unencumbered by industrial property rights and third party copyrights (hereinafter known as Proprietary rights). Claims will not be admitted in so far as the breach of proprietary rights is based upon the samples, models, drawings and other information and specifications provided by the Customer or if the breach of proprietary rights is caused as a result of a Customer’s application or as a result of the goods being modified or used by the Customer together with products not supplied by us. In so far as a third party asserts justified claims against the Customer on account of a breach of proprietary rights by the goods, the Customer shall have to inform us in writing immediately and co-ordinate his defence with us.
In the event that third party proprietary rights are asserted for which we shall have to couch in accordance with the number above, we shall, as we choose, either obtain a right of use or modify our performance in such a way so that the proprietary right is no longer breached or we shall replace the goods (Cure). The same shall apply mutatis mutandis if other legal defects are extant. Compensation claims for damages shall only exist in accordance with Paragraph X.
- If we refuse to effect a cure or if this is unsuccessful, or if it is unreasonable to expect the Customer to accept it, or if we do not carry it out within a reasonable period of time set by the Customer, the Customer may withdraw from the contract or reduce the purchase price. Compensation claims for damages shall only exist in accordance with Paragraph X.
- The Customer’s claims based upon his expenditure incurred for the purpose of a cure being effected, in particular transport costs, travelling expenses, the cost of materials are inadmissible in so far as the expenditure increases because the supplied item has been moved subsequently to a location other than the Customer’s branch, unless it has been moved so that it can be used as intended.
- All warranty claims, with the exception of any claims there may be in accordance with Paragraph X as well as in the event of malicious non-disclosure by us shall become time-barred when 12 months after delivery have lapsed.
X. Liability, Compensation for damages and Expenditure
- In so far as nothing is shown otherwise in these General Terms and Conditions of Business and in particular in the provisions below, compensation claims for damages and compensation for expenditure of all types incurred by the Customer, regardless of whatever legal reasons upon which they are based (hereinafter known collectively as „Compensation claims for damages“) shall be inadmissible. This shall also apply in particular for compensation claims for damages based on faults when the contract was signed, on account of other breaches of duty or on account of claims based on tort for compensation for property damages in accordance with Section 823 of the German Civil Code [BGB].
- The warranty disclaimer in accordance with Para 1 shall not apply for damages
- based upon death, personal injury and physical harm as a result of at least negligent breach of duty for which we or our legal representatives or assistants are to blame;
- for which our liability is compulsory under the German Pro- duct Liability Act or
- based upon a breach of duty attributable to at least gross negligence by us or our legal representatives or assistants, whereby liability shall be limited to damages foreseeable in a typical contract except in cases of intent;
- in the event of a malicious non-disclosure of a defect or when furnishing a warranty, whereby in the latter case the scope of our liability shall be determined by the statement of indemnity.
- The warranty disclaimer shall not apply, furthermore, for damages attributable to at least a negligent breach by us or our statutory representatives or assistants, of a duty, the fulfilment of which makes it possible to carry out the contract in the first place and upon compliance with which the Customer normally relies and can be expected to rely (Cardinal duties). If a cardinal duty is breached by us our liability shall be limited to the foreseeable damages typical for such a contract, provided that there is no intent and that the damages are not the result of death, personal injury or physical harm due to at least a negligent breach.
- In so far as our liability is inadmissible, or limited, this shall also apply for the personal liability of our salaried staff, employees, representatives and assistants.
- The Customer shall inform us in depth and consult us immediately in so far as he intends to assert a claim against us in accordance with the above regulations. The Customer shall have to allow us an opportunity to investigate the claim.
XI. Default in taking delivery
- If the Customer refuses acceptance without justification following the expiry of or a reasonable subsequent period of time he has been set of at least 4 (four) weeks or if he expressly states before this period of time has expired that he does not intend to accept a delivery, we may withdraw from the contract and demand compensation for damages amounting to 20% of the contract value instead of performance; the Customer shall reserve the right to prove that the loss suffered by us is less or that we have not suffered a loss , and we shall reserve the right to prove that we have suffered a higher loss.
- If the Customer is more than two weeks in default with acceptance we shall be entitled to demand a lump sum as default damages amounting to 0.25% of the value of the goods supplied in the consignment concerned for each full week of default, not, however, to exceed a maximum of 10% of the value of the goods supplied in the consignment concerned. The Customer shall reserve the right to prove that the loss suffered by us is less or that we have not suffered a loss, and we shall reserve the right to prove that we have suffered a higher loss.
XII. Applicable law, Place of fulfilment, Place of jurisdiction
- These terms and conditions of business and all the legal relationships between us and the Customer, including those with companies in countries other than Germany shall be governed by German law alone. As far as is allowed by law, the laws of other countries shall not apply, just as the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
- The sole place of jurisdiction for all disputes including those disputes relating to drafts and cheques in business transactions with registered traders, legal entities established under public law or public law special funds shall be the courts having jurisdiction over our principal place of business. This sole place of jurisdiction shall also apply if the Customer does not have any general place of jurisdiction in Germany. We shall however, be entitled to sue the Customer at the court having jurisdiction where he has his principal place of business.
- Unless the order confirmation states otherwise, our principal place of business shall be the place of fulfilment.
XIII. Final provisions
- Should one or more of the provisions in these T&Cs be or become invalid, the remaining provisions shall nevertheless continue to apply in full. In this case the Parties shall have to enter into negotiations in good faith with the aim of replacing the invalid provision with that valid provision which comes closest to the economic objective of the invalid provision. This shall apply mutatis mutandis if there are gaps in this contract.
- Our terms and conditions of business shall apply until the business relationship has been handled in full.
- We would point out that we shall save the Customer’s data in keeping with the set objective of the contractual relationship.
Supplementary Terms and Conditions for deliveries including setup
The following Terms and Conditions apply as a supplement to the General Terms and Conditions of Business of Karl Mayer STOLL Textilmaschinenfabrik GmbH for business transactions with businesses, provided that we have agreed in a specific instance to set up the knitting machines.
I. Cost and risk
- If knitting machines to be supplied by us are to be set up by us, this shall not alter the passing of risk agreed for the delivery of the knitting machine.
- Unless an agreement has been made otherwise, assembly shall be carried out at the Customer’s expense at actual cost. Overtime, work on Sundays and public holidays caused by the Customer are likewise to be reimbursed by the Customer. This shall also apply for travelling and waiting time caused by the Customer, provided that we are not responsible for them.
- Other arrangements shall only apply if a lump sum price has been expressly agreed in writing.
II. Work conditions
The Customer shall have to take the measures necessary to protect persons and property at the assembly site and to ensure adequate working conditions. He shall have to inform the site supervisor of any special safety regulations which may be in force and draw attention to specific hazards.
III. Assistance to be provided by the Customer
The Customer shall be obliged to provide technical assistance at his own expense in particular for:
- Carrying out all building work in good time prior to the beginning of assembly work so that workon setting up the knitting machines may commence immediately following delivery and can becarried out without delays. The substructure must be completely dry and set and the rooms inwhich the machinery is to be set up must be suitably weatherproof, well lit and sufficiently heated.
- Providing dry rooms fitted with lighting and locks, supervised and protected by security in whichmachine parts, materials and tools, inter alia, may be stored.
- Providing heating, lighting, electricity for running the machines, water and other necessary mediaincluding the necessary connections.
- Providing assistants (Teams of assistants and skilled workers such as electricians) in the quantityregarded by us as being necessary and for the time required for assembly.
- Providing the devices and materials required for setting up and starting up the machines.
- Loading and transporting the items required for assembly given the type of assembly.In addition to this, the Customer shall have to support the assembly staff as required when carrying out the assembly work at his own expense.
If the Customer fails to fulfil his obligations, we shall consequently be entitled, but not obliged however, to carry out the actions incumbent upon the Customer in his place and at his expense. Moreover, our statutory rights and claims shall not be affected.
IV. Assembly period
- Provided that an assembly period has been expressly agreed, compliance with it shall presuppose that the Customer has fulfilled the obligations incumbent upon him, in particular those in Section III. The assembly period will have been complied with if the knitting machine supplied by us is operational prior to the expiry of the assembly period.
- Section V of the General Terms and Conditions of Business of Karl Mayer STOLL Textilmaschinenfabrik GmbH shall apply for an extension of the assembly period as well as our liability in the event of default for business transactions with companies subject to the proviso that the probable assembly costs shall apply instead of the value of the delivered goods.
V. The Customer’s duty of care
The Customer shall be obliged to keep the devices provided by us to set up the machines or tools we have brought to the Customer’s premises in safe keeping and to protect them against loss and damage.
Unless regulated otherwise above, the General Terms and Conditions of Business of Karl Mayer STOLL Textilmaschinenfabrik GmbH shall apply for business transactions with companies.