1. Range of Validity
The deliveries, production and quotations of the ELTEN GmbH are made exclusively according to these Terms of Payment and Delivery. They also apply with regard to all future business, even so when they are not specifically agreed upon.
2. Order
(1) The order has been placed if it is not cancelled by us in writing within 10 days. Decisive for the setting of the deadline is the dispatch date of the letter of rejection.
(2) Offers published in prospect material, advertisements, price-lists etc. are – also regarding price indications – without engagement, subject to change without notice and not binding.
(3) Secondary agreements must be confirmed in writing in order to become valid.
3. Delivery
(1) Unless otherwise agreed, deliveries are made on condition “ex works” at buyer’s risk. The transport costs for domestic deliveries are borne by the seller. Delivery is done in the way which is most favourable for the seller (sea freight, air freight or forwarding agency). For deliveries made abroad, the buyer has to come up for the cost of delivery.
(2) Additional costs for special requests from the buyer (e.g. express, courier) shall be borne by the buyer himself.
(3) If the order quantity of an order falls below ten pairs of shoes, we are entitled to invoice a freight/arrangement allowance to the amount of 9.90 EUR. As far as accessories are concerned, we will not charge a freight/arrangement allowance if the merchandise net value is 360.00 EUR or more.
4. Packing
Post and cardboard packing as well as crate- and linen cloth packing will not be charged extra.
5. Title of Property
We shall retain full title to the goods until any and all our current claims against the buyer as well as all future claims against the buyer are fully settled as long as the future claims are associated with the current business relationship between us and the buyer.
The buyer is entitled to resell the delivered goods which are subject to our retention of title in the ordinary course of business. For this case, the buyer hereby assigns any and all claims arising out of such resale to us. If the goods subject to the retention of title are resold after processing and together with other goods which do not belong to us or if the goods subject to the retention of title are mixed with other movable assets the respective claim of the buyer against its customers shall be assigned to us in the amount of the delivery price as agreed for the goods subject to the retention of title.
The buyer shall be entitled to collect the respective claims against its customers also after the assignment of these claims to us. Our right to collect these claims in our own name remains unaffected. However, we shall be obliged to refrain from a collection in our own name as long as the buyer fulfils any and all of its payment obligations vis-à-vis us. If the buyer makes use of its right to collect the claims against its customers we are entitled to the respective proceeds in the amount of the delivery price as agreed for the goods subject to the retention of title.
We shall be obliged to release the securities which we are entitled to upon request if the marketable value of the securities exceeds the secured claims by more than 20 %.
If we accept a bill of exchange as means of payment we shall retain the full title to the goods delivered by us until it is unambiguous that we shall not be called upon with respect to the bill of exchange.
6. Terms of Delivery
(1) In case of force majeure or official actions we as well as the buyer shall be entitled to extend the agreed delivery time – or, due to lack of agreement – to postpone the immediate delivery for the time of duration, however, at the utmost for a period of 6 weeks, under exclusion of any guarantee claims. After expiration of this time limit each party is entitled to withdraw from the contract after having set an appropriate prolongation under the threat of a rejection.
(2) The same applies in case of labour disputes (strikes and lock-outs).
(3) Should the buyer intend to claim indemnification due to non-fulfilment, he is obliged to set us a grace period of at least 24 days giving us notice that he will decline fulfilment after expiration of this grace period. The grace periods shall not begin before the receipt of the letter at the buyer’s premises and not earlier than after expiration of the delivery date. This procedure also applies if the buyer demands fulfilment of the contract.
(4) Transactions for delivery at a fixed date are not carried-out.
7. Guarantees and Liabilities
(1) Should the article delivered be defective or miss the promised characteristics, or the article deteriorates within the guarantee period due to manufacturing or material defaults, we are entitled at the discretion of the buyer under the exclusion of other guarantee claims of the buyer either to perform a subsequent delivery or to grant a price reduction.
(2) The warranty period comprises 12 month and starts with the delivery of the goods.
(3) If the subsequent improvement or replacement delivery fails, the buyer can, under exclusion of other guarantee claims, insist on their correct repetition within an appropriate grace period. Should the further subsequent improvement or replacement delivery fail the further rights of the buyer shall be subject to statutory law.
(4) The notice of visible defects has to be submitted in written form. It should be made and proved within 10 days after receipt of goods, in case of delivery before the agreed delivery date, within 10 days after the agreed delivery date.
(5) In case of hidden defects, statutory law shall apply.
(6) The goods subject to a notice of defect may only be sent back to us with our approval and free of charge for us, unless we have not respond to the notice of defect within 10 days.
(7) In case of notices of defects with respect to single pairs the simultaneous return of the goods together with the respective notice is admissible. Such notices of defect have to be settled on our part within 15 days, starting on the provable date of dispatch, otherwise the buyer is entitled to charge the equivalent value. Dispatch from both parties involved has to be made by registered mail. Should the buyer dispatch the goods not by registered mail, the notice of defect has to be dealt with from the seller within 10 days after receipt of the returned material. In this case the dispatch of the goods from the seller can also be made in non-registered form.
8. Exclusion of indemnity claims
(1) Indemnity claims irrespective of legal basis (including but not limited to im-possibility of performance, violation of accessory obligations, default upon conclusion of a contract, torts etc), may only be asserted against us, in case of
intent,
gross negligence of our company organs and executives,
culpable infliction of death, injury or damages to someone’s health,
defects which has been fraudulently concealed or which absence has been guaranteed by us,
defects of the goods delivered by us insofar as we are liable for personal or property damage of privately used goods according to the German Product Liability Act.
(2) In case of a culpable violation of material contractual obligations we shall also be liable for gross negligence of non-executive employees and slight negligence. In the latter case our liability is, however, limited to the reasonably foreseeable damages which are typical for this contract.
(3) Further indemnity claims are excluded.
9. Invoicing
(1) Invoices are issued on the day of dispatch of the goods, respectively on taking over of the goods. In the case of early delivery, the agreed delivery date will be regarded as date of issue. Valuations modifying the validity are inadmissible.
(2) An open credit may not exceed 30 days after date of invoice. On exceeding the credit period or in case of non-adherence to the payment date of the agreed pre-payment, the interest rate will be 5 percentage points above the prime rate in accordance with Section § 247 of the German Civil Code for consumers and 8 percentage points above the prime rate in accordance with Section § 247 of the German Civil Code for legal transactions with entrepreneurs, at least, however, 6 percent for consumers and 9 percent for entrepreneurs. The seller has to prove a higher loss of interest, the buyer the lower loss of interest.
(3) In case of cash payment into a lossless balance within 10 days after the date of the respective invoice we shall grant a cash discount of 2 %.
(4) Invoices from 1. to 10., 11 to 20 and 21 until the last day of the month can be added up to the respective last day of this period of time, unless differing arrangements have been made.
(5) Acceptances and remittances of customers shall not be deemed as payment in cash.
(6) Subject to a respective agreement we and the buyer may agree on the presentation of stamped Three-Months-Acceptances free of charge or bankable remittances of customers. The presentation has to be performed 30 days after the date of the respective invoice at the latest. Ancillary costs shall be borne by the buyer.
(7) The contracting parties may agree upon one or more of the conditions listed above under para. (6).
10. Failure to pay, Deterioration of property
If the buyer is more that 14 days behind the agreed payment, or a considerable deterioration with regard to his property occurs, we are entitled to withdraw from that part of the contract which has not been fulfilled yet, or, with regard to future deliveries, insist on cash payment or guarantee of the goods without the necessity of a (previous) prolongation of time.
11. Place of Jurisdiction, Venue
Place of jurisdiction for all performances laid down in the delivery contract is the town where our factory is located. In the event of litigation, the courts in Kleve shall have exclusive jurisdiction rights.
Last revision: Sept. 2008