1. Scope of application
1.1 The following Terms & Conditions of Sale shall apply to all contracts concluded between the Buyer and GLOBATEX GmbH (hereinafter also referred to as GLOBATEX or the Seller) concerning the supply and delivery of goods. They shall also apply to all future business relations, even if not expressly agreed upon once again. Divergent terms and conditions of the Buyer, which we do not explicitly recognize, shall not be binding upon us, even if we do not expressly object to them. The following Terms & Conditions of Sale shall apply, even if we carry out the Buyer’s order unconditionally in knowledge of contrary or divergent terms and conditions of the Buyer.
1.2 All covenants reached between the Buyer and GLOBATEX for the purpose of executing the purchase contracts shall be set down in writing in the contracts.
1.3 Our offers and these Terms & Conditions of Sale are intended exclusively for commercial customers. We do not supply consumers as defined in Section 13 of the German Civil Code (BGB).
2. Offer and conclusion of contract
2.1 The offers of GLOBATEX are non-binding and subject to change without notice, except in those cases where we have designated them explicitly as binding.
2.2 We reserve the exclusive title, copyright and all other property rights to all illustrations, calculations, drawings, and other documents, except in cases where they have been explicitly transferred to the Buyer based on transferred rights of use. The Buyer may only pass these on to third parties with our express approval, irrespective of whether we have marked them as confidential or not.
3. Terms of payment
3.1 Unless stated otherwise in the order confirmation, the prices quoted are ex works exclusive of packaging and exclusive of any custom duties and taxes as may be due. Our prices do not include the statutory VAT, which will be stated separately in the invoice at the statutory rate applicable on the day of invoicing.
3.2 A discount deduction is only permissible if separately agreed upon in writing between GLOBATEX and the Buyer. The purchase price is due for payment net (without deduction) immediately on receipt of the invoice by the Buyer, provided that no other payment term was agreed. A payment is not deemed made until the amount is at our disposal.
3.3 The Buyer is only entitled to claim right of retention or setoff if the underlying counterclaim has been recognized by declaratory judgement or is undisputed.
3.4 In the case of a suspension of payments or if the Buyer files for the initiation of insolvency proceedings, all outstanding amounts owed to GLOBATEX shall immediately become due.
4. Delivery and performance period
4.1 Delivery periods or deadlines not expressly stipulated as binding shall constitute non-binding specifications only.
4.2 In case insolvency proceedings are initiated on the assets of the Buyer, or if an application for insolvency is filed at the competent court, GLOBATEX shall have the right to withdraw from the purchase agreement. The same applies if the Buyer breaches German export provisions or the US Export Administration Act, and/or if the agreed credit insurance is non-existent or does not exist anymore.
4.3 GLOBATEX shall be entitled to undertake partial deliveries and performances, as long as this is deemed reasonable for the Buyer.
4.4 Should the Buyer default in accepting delivery, GLOBATEX shall be entitled to demand compensation for any losses and additional expenditures incurred. The same shall apply if the Buyer culpably violates its obligations to cooperate. At the moment the Buyer defaults in accepting delivery or defaults on debts, the risk of accidental loss or deterioration shall pass to the Buyer.
5. Transfer of risk, shipment, packaging
5.1 Loading and shipment are not insured and are at the risk of the Buyer, unless agreed otherwise. We shall endeavour to make accommodations in respect of the wishes and interests of the Buyer; any additional expenses incurred hereby – even if carriage paid was agreed – shall be borne by the Buyer.
5.2 We do not take back transport and any other packaging as defined in the packaging regulation (Germany); with the exception of pallets. The Buyer must organize the disposal of the packaging at the Buyer’s own cost.
5.3 If shipment is delayed at the request of or through the fault of the Buyer, we shall store the goods at the expense and risk of the Buyer. In this case, notification of readiness for dispatch is equivalent to actual dispatch. For the purpose of storage GLOBATEX is entitled to engage the services of a forwarding company or a storekeeper. The storage costs shall be invoiced at a fixed monthly rate equivalent to 1% of the net invoice value of the stored goods, however, up to a maximum amount of EUR 500. GLOBATEX is entitled to provide proof that higher costs have actually been incurred and to invoice these accordingly. The Buyer is entitled to provide proof that no or lower storage costs have been incurred.
5.4 As long as the Buyer is in default of accepting delivery, GLOBATEX has the right to use the goods itself, after having set the Buyer a reasonable period of time for collection which the Buyer has failed to meet. Any payments due from the Buyer in settlement of the goods shall take into account an additional charge for damage compensation.
5.5 On request and at the Buyer’s cost, GLOBATEX shall take out transport insurance cover.
6. Warranty and liability
6.1 Claims by the Buyer for defects only apply if the Buyer has properly complied with all requirements regarding inspection and notification of defects established by Section 377 of the German Commercial Code (HGB). In particular, before processing the Buyer has a duty to carry out a mandatory inspection of the goods to establish whether these have the agreed quality, specifically with regard to contents harmful to health and their environmental compatibility.
6.2 The substances contained in the delivery are agreed upon by the parties in writing. In the case of a legitimate notice of defects, the Buyer is entitled to supplementary performance. In the context of the supplementary performance, GLOBOTEX removes the defect at its option, either by subsequent delivery (delivery of new goods) or rectification (repair of the defect). The Buyer shall grant GLOBATEX a reasonable period of time for the supplementary performance. In the case of a rectification of defects, GLOBATEX shall bear the necessary expenses, provided that these have not increased due to the fact that the object of the contract is located at a place different from the place of performance. If the supplementary performance fails, the Buyer can demand, at its option, a reduction of the purchase price (reduction) or declare to withdraw from the contract. The rectification is deemed failed after the second unsuccessful attempt insofar as on account of the object of contract additional rectification attempts are neither appropriate nor reasonable for the Buyer. Claims for damages under the following conditions due to a defect may only be asserted by the Buyer after the rectification has failed. The right of the Buyer to claim additional damages under the conditions set forth below remains unaffected by this.
6.3 Warranty claims lapse after 12 months from the moment of the transfer of risk. Paragraph 7 hereof shall not be prejudiced hereby.
6.4 If the Buyer has sent the goods to GLOBATEX for the purpose of inspection and repair on account of alleged warranty rights, and the subsequent inspection establishes that there is in fact no defect, the Buyer shall then reimburse GLOBATEX for the costs incurred in inspecting the goods, including the shipping and packing costs.
7.1 Liability for damage to other objects of legal interest other than to life, limb or health is excluded, unless this damage is caused through the wilful or grossly negligent conduct of GLOBATEX, its legal representatives or vicarious agents, and the conduct represents a breach of duties which are essential for the purpose of the contract. Essential contractual duties are those duties, the fulfilment of which enables due implementation of the contract in the first place, and the observance of which the Buyer may regularly rely on (“material duties“). Damage claims for damage caused through force majeure are excluded. This exclusion of liability does not apply if claims involve the Product Liability Act, a defect was maliciously concealed or a guarantee of quality had been assumed.
7.2 Provided that the breach of essential contractual duties is caused by simple negligence on the part of GLOBATEX, its legal representatives or executives, or if the breach is caused by simple or gross negligence on the part of its other vicarious agents, GLOBATEX shall only be liable for any damage that was foreseeable and typical for the contract on conclusion of the contract.
8. Retention of title
8.1 In the case of purchase contracts the delivered goods shall remain the property (reserved goods) of the Seller until settlement of all claims, regardless of the legal basis on which they arose, and including those claims of the Seller against the Buyer that will not become due until the future.
8.2 The Buyer hereby assigns in advance to the Seller all claims arising from the resale of the delivery item, to the amount of the value of the delivery item with all ancillary rights. The Buyer is authorized to collect the claims. The right of the Seller to collect the claim itself remains unaffected thereby.
8.3 At the request of the Buyer, the Seller commits to release securities at its own option, if the realizable value of its securities exceeds the total of its claims from the business relationship by more than 10%.
8.4 Provided that the Buyer meets its obligations towards the Seller, the Buyer shall be entitled to make use of the delivery item in the ordinary course of business and subject to retention of title, insofar as the claims effectively pass to the Seller in accordance with Paragraph 8.2. Extraordinary disposals, such as pledges, assignments by way of security and any other assignments shall not be permitted. The Seller must be notified immediately in writing of any attempts by third parties to seize the delivery item or any claims assigned to the Seller, in particular pledges.
8.5 During retention of title the Buyer is in principle entitled to possess and make use as intended of the delivery item. If the Buyer acts in breach of contract – particularly in the event of default in payment or insolvency proceedings have been initiated – the Seller may repossess the delivery item and revoke the authorization to collect the claims arising from the resale. The Buyer is obliged – to the exclusion of rights of retention – to surrender the goods. The entire costs involved in repossessing and reutilizing the goods shall be borne by the Buyer. The Seller is entitled to sell the goods on the open market. At the Seller’s request, the Buyer must provide the Seller with a list of the claims assigned to the Seller in accordance with Paragraph 8.2. as well as provide the Seller with any further information and documentation required to enable the Seller to exercise the rights to which it is entitled, and to notify the debtors of the assignment accordingly.
8.6 The Buyer must maintain the delivery item in a proper condition for the duration of the retention of title.
8.7 Enforcing the retention of title and seizing the delivery item by the Seller do not constitute a withdrawal from the contract.
9. Supplementary provisions
9.1. GLOBATEX has the right to name the Buyer as a reference customer. This also includes the disclosure of names in press releases.
9.2 GLOBATEX is entitled to transfer the rights and duties from this contract to a third party.
9.3 The Buyer is obliged to notify GLOBATEX in writing of any change in the seat of its company.
9.4 Should one or more of the preceding provisions be or become ineffective, this shall not affect the validity of the remaining provisions.
9.5 Place of fulfilment and sole jurisdiction for deliveries and payments (including cheque disputes) as well as all disputes ensuing between the Seller and the Buyer from the contracts concluded shall be the registered seat of GLOBATEX.
9.6 The contractual relationship shall be subject to the law of the Federal Republic of Germany. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly excluded. Applicable in addition shall be the INCOTERMS 2010 of the International Chamber of Commerce, Paris.
Note: This is an English translation of the German original and is provided for information purposes only. Solely the German version of these Terms and Conditions of Sale shall be legally binding.
1. Conclusion of contract
1.1 GLOBATEX GmbH (hereinafter also referred to as GLOBATEX or Buyer) shall be bound by the purchase order for two weeks. If the Seller fails to accept the order within two weeks of receipt (by order confirmation), the contract shall be deemed non-concluded.
1.2 Should the confirmation of order deviate from the purchase order, GLOBATEX shall only be bound by it, provided it has consented to the deviation in writing. This shall not apply to minor deviations in quantity. A minor deviation in quantity shall be any deviation of up to 10%.
In particular, GLOBATEX shall be bound by the general business terms and conditions of the Seller only in so far as these are in accordance with the terms and conditions of GLOBATEX, or GLOBATEX has consented to them in writing.
Divergent terms and conditions of the Seller, which are not explicitly acknowledged by the Buyer, shall not be binding on the Buyer, even if the Buyer does not expressly oppose them. The terms and conditions of the Buyer shall apply even if the Buyer accepts delivery unreservedly, despite being aware of conflicting terms and conditions or terms and conditions diverging from the Buyer’s own. Accepting deliveries or services as well as payments does not signify consent of other terms and conditions.
1.3 Amendments and additions to this contract shall not take effect unless confirmed by the Buyer in writing. This shall also apply to any abrogation of this contractually agreed written form.
2. Delivery period
2.1 The delivery period specified by the Buyer in the purchase order shall be binding on the Seller.
2.2 For the purpose of establishing the timeliness of deliveries, the relevant point in time shall be the date of receipt at the place of receipt designated by the Buyer, and for deliveries involving setting-up, installation and/or services, the relevant point in time shall be the date of acceptance of same.
2.3 In the event that the Seller defaults in due delivery, the Buyer shall be entitled to assert statutory claims. If the Buyer asserts claims for damages, the Seller shall be entitled to prove that the breach of duty was caused through no fault of its own.
3. Transfer of risk and shipment
3.1. In the case of deliveries involving setting-up or installation, as well as those relating to services, the transfer of risk occurs on acceptance; for deliveries not involving setting-up and installation, the transfer of risk occurs on the goods arriving at the place of receipt specified by the Buyer.
3.2 Unless otherwise agreed, the costs of shipment and the customary packaging shall be borne by the Seller. If pricing ex works or ex sales depot/warehouse of the Seller has been agreed, delivery shall in each case be carried out by the cheapest available means, unless the Buyer has specified a particular method or means of transport. Any additional costs incurred as a result of not adhering to specific transport requirements shall be borne by the Seller. In the case of deliveries free consignee, the Buyer is likewise entitled to determine the method or means of transport. The Seller shall meet any additional costs for an accelerated delivery as may be necessary to ensure adherence to a confirmed delivery deadline.
3.3 Every delivery must be accompanied by a packing slip or delivery note containing details of the contents and the complete order reference ID. Notice of dispatch containing the same information shall take place immediately.
3.4 In so far as deliveries are dispatched directly to a customer or supplier of the Buyer, the delivery note must clearly indicate that delivery is being effected in the name of the Buyer.
Invoices must contain the order reference ID and the respective item numbers. Invoices shall not be due for payment whilst these details are missing. Any copies of invoices must be clearly marked as duplicates.
5.1 Unless agreed otherwise, payments shall be effected,
- within 14 days with 3% discount or
- within 30 days with 2% discount or
- within 90 days net.
5.2 The date on which payment is due is calculated from the day on which the delivery or service was completed in full and the correct invoice was received. Deduction of discount shall be allowed even when payments are offset or withheld in a reasonable amount by the Buyer due to faults or defects; the date on which payment is due is calculated from the day on which the faults or defects are rectified in full.
5.3 Payments effected do not signify recognition or acceptance of deliveries or services as having been rendered in accordance with the contract.
6. Liability for defects
6.1 The Seller must provide a warranty for deliveries and services rendered.
6.2 The Seller warrants that its deliveries and services are free from third-party claims. The Seller warrants that in terms of quality and soundness the deliveries comply with the sample previously submitted and approved by the Buyer at the Buyer’s option. The Seller warrants in particular that the goods were assessed for environmental compatibility and do not contain any substances that are hazardous to health, and thus comply with the German and European standards as well as the state of the art. In the event that goods do not meet the standards and the Buyer is thus obliged to take back the goods from its customer, the Seller shall be obliged to compensate the Buyer for the damage incurred.
6.3 The warranty claims lapse (except for fraudulent concealment of a defect or in the case of a guarantee for the quality or durability) after 36 months from the transfer of risk.
6.4 If defects are ascertained prior to or on transfer of risk, or arise during the warranty period, the Seller shall at its own expense and at the Buyer’s option, either rectify the defects or provide fault-free replacement or in the case of services re-performance. This also applies to deliveries on which only spot-checks were carried out. Should the Seller fail to rectify the defects or provide replacement or re-performance within a reasonable period of time to be set by the Buyer, the Buyer shall be entitled,
- to withdraw from the contract in whole or in part without compensation,
- or to demand a reduction in the purchase price,
- or to carry out subsequent improvement, repair or replacement itself or arrange for such to be carried out by a third party at the Seller’s expense,
- and to claim damages for non-fulfilment or demand reimbursement of futile expenses.
6.5 The same applies if the Seller declares itself unable to rectify the defects or arrange replacement delivery or re-performance within a reasonable period of time.
6.6 Complaints may be raised within one month of delivery or performance, or if the defects can only be noticed once they are handled, processed or put to use, from the moment they are detected. The costs and risk of returning defective delivery items shall be borne by the Seller.
7. Supplementary provisions
7.1. Should one or more of the preceding provisions be or become ineffective, this shall not affect the validity of the remaining provisions.
7.2 Place of fulfilment and sole jurisdiction for deliv-eries and payments (including cheque disputes) as well as all disputes ensuing between the Seller and the Buyer from the contracts concluded between the parties shall be the registered seat of the Buyer.
7.3. The contractual relationship shall be subject to the law of the Federal Republic of Germany. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly excluded. Applicable in addition shall be the INCOTERMS 2010 of the International Chamber of Commerce, Paris.
Note: This is an English translation of the German original and is provided for information purposes only.
Solely the German version of these General Terms and Conditions of Purchase shall be legally binding.