General Conditions of Supply and Delivery for Export
1. Sphere of Application
1.1 Principally these General Conditions of Supply and Delivery (hereinafter referred to as GCS) apply to all deliveries, services and quotations of Firma uma International GmbH., 89231 Neu-Ulm, Germany (hereinafter called “Seller”), provided that they have not been modified or excluded expressly in writing. The Seller rejects all deviating conditions, which shall not form part of any contract, even if the Seller does not express his rejection explicitly and in writing.
1.2 Any documents contained in an offer, like pictures, drawings, weights, measures etc. constitute an approximate guide, as far as they are not described expressly as binding.
2. Conclusion of the Contract, Prices, Packaging and Dispatchment
2.1 This contract is deemed to be concluded, when the Seller after an order has dispatched a written acceptance or a written confirmation of the order, or if necessary within the time fixed by the Buyer. If the Seller has fixed a time for acceptance in his written offer, the contract shall be deemed to be concluded, when the Buyer before expiry of such period has dispatched a written acceptance, as long as such acceptance reaches the Seller latest within 3 days after the fixed expiry date.
2.2 Catalogues and price lists which have been sent by the Seller are without obligation.
2.3 Unless otherwise agreed, all prices are for delivery ex works of the Seller, packaging and German Value Added Tax excluded (refer to 3.1).
2.4 The type of packaging and shipment are within the Seller´s discretion as long as they are necessary, commonly used in the branch or they have been chosen by the Buyer. The relevant costs (including costs of pallets) are invoiced separately and borne by the Buyer.
3. Delivery, Passing of Risk
3.1 Unless otherwise agreed in writing, all deliveries will be effected exclusively ex works of the Seller in Neu-Ulm, Federal Republic of Germany (EXW Incoterms 2010). Partial deliveries are permissible. Any agreed deviating trade terms shall be interpreted according to the Incoterms of the International Chamber of Commerce, Paris.
3.2 The passing of risk conforms to the relevant Incoterms of the ICC Paris, whatsoever.
4. Time for Delivery, Delay
4.1 The period of time for delivery begins to run with dispatchment of the sales confirmation, but not prior to the production of all documents, licences an permits and further formalities for which the Buyer is obliged nor before receipt of the agreed payments.
4.2 If the Seller is responsible for delay of delivery the Buyer after two weeks of delay is entitled to liquidated damages for each further full week of delay, payable at a rate of one per cent – but not exceeding 10 % - calculated on that part of the purchase price, which is attributable to that part of delayed delivery, any other claims excluded.
4.3 If the maximum liquidated damages according to no. 4.2 are reached, the Buyer – after he has given an additional reasonable period combined with the announcement, that acceptance of delivery will be refused – may notify the Seller in writing of the termination of the contract in respect of that part of the product, which is delayed, except where the Seller delivers prior to termination. No. 7.5 applies analogously.
5. Acceptance of Delivery
The Buyer bears all costs for storing, insurance, protecting measures etc., arising from any delayed acceptance. The Seller may demand the Buyer by notice in writing to accept delivery an additional period of time, if the Buyer does not accept delivery at the fixed time for delivery. Nevertheless this does not affect the Seller`s claim on the purchase price. After expiry of the additional period the Seller is entitled to terminate the contract in whole or partly by notice writing to the Buyer and claim damages.
6.1 Unless otherwise agreed, all payments have to be affected by advance payment or by irrevocable and confirmed letter of credit within two weeks either after dispatchment of the Buyer`s order or after the Buyer´s receipt of the order confirmation of the Seller, whatever is soonest.
6.2 In ease of late payment the Seller is entitled to interest from the day on which payment was due. The rate of interest shall be 5 % p. a. above the rate of discount of the Deutsche Bundesbank. The Seller in so far my suspend his performance of the contract. If the Buyer has not payed the amount agreed within 1 month after the day of dued payment, the Seller shall be entitled to terminate the contract by notice in writing and claim compensation for the loss he has incurred.
7. Liability for Conformity of the Goods
7.1 (Duty to examination and notification) After acceptance the Buyer must examine the goods without any delay. Therefor he has to observe the common rules of technology. In any case the Buyer loses the right to rely on a lack of conformity of the goods, if he does not give notice to the Seller, exactly specifying the nature of the lack of conformity, as soon as he has discovered it or ought to have discovered it. After arrangement with the Seller the Buyer is responsible for the securing of all proofs.
7.2 (Handling and storage) The proof of careful treatment and adequate storage of the goods devolves on the Buyer.
7.3 (Remedy of defects, substitutional delivery) In case the goods do not conform with the contract, the Seller may remedy the lack of conformity at first and on his own choice within reasonable time after the Buyer`s request and also regarding substantial defects by repair or substitutional delivery.
7.4 (Pro rata reduction, termination of the contract) Where the Seller fails to remedy the lack of conformity according to no. 7.3 by repair or replacement, the Buyer is entitled to a rata reduction of the purchase price. If the lack of conformity is fundamental, the purchaser may fix a final time for fullfilment and after fruitless expiry of such final time demand termination of the contract.
7.5 (Exclusion of further claims for damages caused by the defect) Save as stipulated in nos. 4.2, 4.3 and 7.1 until 7.4, the Seller shall not be liable for any lack of conformity and damages. This applies to any damages caused by the defect, including losses of production, losses of profit or other indirect whatsoever (losses and damages, which have not incurred in the delivered goods themselves). This exclusion of liability does not apply, where the firm owner or leading managers are guilty of gross negligence, or if the Seller is reponsible for a fundamental breach of contract he is liable only for typical contractual losses, which could have been forseen reasonably, as far as there is no gross negligence of the firm owner or leading managers. The Seller is also liable, where he has confirmed certain virtues, which were supposed to protect the Buyer against indirect losses and damages.
8. Liability for subsidiary Duties
The Seller ist only liable for the contractual or precontractual subsidiary duties according to the provisions of nos. 4, 7 and no. 77.
As far as the Seller is unable to deliver in whole or partly, the Buyer may terminate the contract by notice in writing to the Seller in respect of that part which is not delivered. No. 7.5 applies analogously.
10. Product Liability, technical Rules
10.1 The Buyer ist obliged to notify the Seller of any certain dangers, which occure in connection with the use of the delivered goods. If the Seller incurs liability towards any consumers for foreign product liability laws, he will settle legitimate claims for compensation up to the amount of 500.000 German Marks for material losses and 2 Million German Marks for death or personal injury (according to the product liability insurance of the Seller), while the exceeding amount has to be born by the buyer – except where the Seller is guilty of gross negligence.
10.2 The oberservance of technical rules and stadards conforms to the offer, the contract or the order confirmation.
11. Force majeure
11.1 Each party shall not be liable for non-performance, if performance is being prevented by circumstances beyond the party´s control or by one of the following circumstances: fires, natural desasters, war, seizure, requisition, general shortage of materials, restrictions in the use of power, industrial disputes or if a lack of conformity of subcontractors is caused by any such circumstances.
11.2 Each party shall not be liable for any delay, which is caused by delay of its subcontracters.
11.3 Each party may by notice in writing terminate the contract, if performance is being prevented for more than 6 months according to no. 11.1.
12. Further Responsibility of the Seller
Save as expressly stipulated in this GCS, all further contractual or legal claims against the Seller are exluded, especially claims for termination of the contract, price reduction or damages of any kind, including such damages, which have not occurred at the subject of delivery itself. No. 7.5 sentence 3 and 4 apply analogously.
13. Term of Limitation
All claims of the Buyer based on lack of conformity with the contract shall be superannuated within 6 months form the passing of risk (no. 3). The Seller`s liability is limited to any lack of conformity, which appears within this period.
14. Retention of Title and Ownership
14.1 All delivered goods remain property of the Seller until payed for in full, provided and as far as that such retention of property is valid under the applicable law. Any costs in connection with the erection of the retention of ownership shall be shared.
14.2 The Buyer shall at the request of the Seller, assist him in taking any measures necessary to protect the Seller`s title to the product in the country concerned.
14.3 The Seller may by notice in writing authorise the Buyer to resell the goods in the ordinary course of business. Any claims for purchase prices resulting thereof are deemed to be ceded to the Seller at the time of origine, if the Buyer ist entitled to resell the goods in the ordinary course of business.
15.1 All rights and duties of either party are not assignable, except assignments of demands of purchase prices to banks of the Seller.
15.2 Modifications, amendments of further subsidiary agreements are required in a written form to be valid.
15.3 All correspondence must be in German or English language.
15.4 Any contract concluded under this GCS remains also valid, if where is invalidity of single conditions.
15.5 (Trademarks, Tradenames, Marketing) Only with the prior written consent and only in the interest of the Seller the Buyer is allowed to make use of and have registered any trademark, tradename or other signs of the Seller.
16. Compliance with Law
The Seller is reponsible for the compliance with the relevant German security prescriptions, which are decisive unless otherwise agreed and as far as products made in Germany are exported. The compliance with and the implementation of the relevant foreign trade law (e.g. export or import licences) and further laws from outside the Federal Republic of Germany devolves on the Buyer.
17. Place of Performance, Court of Jurisdiction, Applicable Law
17.1 Place of performance shall be the works ot the Seller.
17.2 Any disputes arising out of or in connection with the contract shall be finally settled at the place of the Seller without recourse to the courts, in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, Paris, by one or more arbitrators designated in conformity with the said rules.
17.3 Instead of the competent arbitration court according to n. 17.2 the competent state courts in Stuttgart, Germany shall decide finally and binding, regarding contracts with Buyers from one of the EEC meber statses or Austria, Israel, Norway, Switzerland and Tunesia.
17.4 The Seller in any case is entitled to invoke the state courts at the place of business of the Buyer. In so far the competence of nos. 17.2 and 17.3 ist obsolet.
17.5 All contracts concluded under the GCS shall be ruled by the United Nations Convention on Contracts for the International Sale of Goods (CISG) from 11.04.1980. Subsidiarily the contract shall be governed by the sustantive law and procedural rules of the law, which is in force at the place of business of the Seller.