Terms of service
GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF FD TEXTIL GMBH & CO. KG
§ 1 Scope and Written Form
Our deliveries, services, and offers are made exclusively on the basis of these
terms and conditions, even if the customer has communicated their own general
terms and conditions when placing the order. The customer’s general terms and
conditions are hereby expressly rejected.
Our general terms and conditions shall also apply to all future transactions,
even if no further reference is made to them at the time of conclusion.
Oral agreements as well as amendments and supplements to contracts concluded
with us, regardless of whether they concern main or ancillary conditions, shall
only be valid if they have been confirmed by us in writing. Any waiver of the
requirement for written form must also be made in writing.
§ 2 Offers and Conclusion of Contract
Our offers are always subject to change and non-binding.
All orders and acceptances of orders require our written confirmation in order
to be legally effective. This also applies to supplements, amendments, or
ancillary agreements.
Drawings, illustrations, dimensions, weights, or other performance data shall
only be binding if this has been expressly agreed in writing.
§ 3 Delivery and Performance Time
Dates and delivery times shall only be binding if they have been confirmed by
us in writing.
Delays in delivery and performance due to force majeure and due to events that
significantly hinder or make delivery impossible for us not only temporarily –
including in particular strikes, lockouts, official orders, delayed
self-supply, etc., even if they occur at our suppliers or their subcontractors
– shall not be our responsibility even in the case of binding deadlines and
dates. They entitle us to postpone delivery or performance for the duration of
the hindrance plus a reasonable start-up period, or to withdraw in whole or in
part from the contract with respect to the part not yet fulfilled.
If the hindrance pursuant to paragraph 2 sentence 1 lasts longer than three
months, the customer shall be entitled, after setting a reasonable grace
period, to withdraw from the contract with respect to the part not yet
fulfilled. If the delivery time is extended pursuant to paragraph 2 sentence 2
or if we are released from our obligation, the customer may not derive any
claims for damages from this. We may only invoke the aforementioned
circumstances if we notify the customer without delay.
Our delivery obligations shall only exist provided that the customer fulfills
their obligations properly and in due time.
In the event of delay in delivery, the customer shall only be entitled to
withdraw if they have granted us a grace period of four weeks.
Claims for damages due to delay in delivery are excluded or limited in
accordance with § 10 (Damages / Reimbursement of Expenses). The exclusion or
limitation regulated in § 10 shall not apply to fixed transactions.
If the customer is in default of acceptance or breaches other obligations to
cooperate, we shall be entitled to claim compensation for the damage incurred,
including any additional expenses. In this case, the risk of accidental loss or
accidental deterioration of the purchased item shall pass to the customer at
the point in time at which the customer is in default of acceptance.
We shall have the right to make early delivery.
We shall be entitled to partial deliveries and partial services at any time,
unless the partial delivery or partial service is of no interest to the
customer.
§ 4 Transfer of Risk
The risk shall pass to the customer upon handover of the goods to the customer
or to the party commissioned with transport, but at the latest upon leaving our
warehouse. This shall apply regardless of who bears the shipping costs and also
if the seller or their agent carries out the transport themselves.
If the goods are ready for dispatch and dispatch is delayed for reasons for
which we are not responsible, the risk shall pass to the customer upon receipt
of the notification of readiness for dispatch.
If we follow shipping instructions issued by the customer, this shall be done
without our own responsibility solely on behalf of, at the expense of, and at
the risk of the customer, unless we act intentionally or with gross negligence.
§ 5 Prices
The prices applicable shall be those calculated in euros on the day of
delivery, ex works or ex warehouse, and are net prices excluding VAT. Postage
or freight and packaging costs as well as any costs of insurance of the goods
shall be invoiced separately. The choice of shipping method shall be at our
discretion.
Sketches, drafts, raw layouts, proof prints, samples, and similar preliminary
work initiated by the customer shall be invoiced even if no contract is
subsequently concluded.
If additional costs are incurred after conclusion of the contract due to
requests for changes or additions by the customer, these shall be invoiced
separately.
§ 6 Due Date of Purchase Price and Terms of Payment
Unless otherwise stated in the order confirmation, the purchase price shall be
due for payment net (without deduction) within 10 days from the invoice date.
Payment shall only be deemed to have been made when we can dispose of the
amount. If we accept bills of exchange or checks, payment shall only be deemed
to have been made upon credit to our account. In the case of acceptance of
bills of exchange, the customer shall bear the discount charges as well as all
other expenses including any VAT incurred and shall pay them immediately. We do
not guarantee that bills of exchange or checks will be presented, protested, or
collected in due time, nor that timely notification to the customer or return
of the bill of exchange will occur.
Notwithstanding any provisions to the contrary by the customer, we shall be
entitled to apply payments first to older debts. If costs and interest have
already arisen, we shall be entitled to apply payments first to costs, then to
interest, and finally to the principal obligation.
If the customer is in default of payment, we shall be entitled to charge
default interest in the amount of the respective bank interest rates and bank
charges for open business loans, but at least 8% p.a. above the base interest
rate pursuant to § 1 of the Discount Transition Act dated 09.06.1998. If we are
able to prove higher damages, we shall be entitled to assert these, unless the
customer proves that we have suffered lower or no damage at all.
In the event of non-payment at maturity, we shall be entitled, subject to the
requirements of § 353 HGB, to charge maturity interest in the amount of 5% p.a.
If the customer is more than four weeks in arrears with their payment
obligations, fails to comply with obligations arising from retention of title,
suspends payments, or applies for the opening of judicial or extrajudicial
insolvency proceedings, all liabilities shall become immediately due, including
those for which we have accepted checks or bills of exchange with a later
maturity. If we have not yet delivered in such a case, we shall be entitled,
even if a later due date for the purchase price has been agreed, to demand
advance payment or provision of security.
If the order requires the provision of special materials or unusually large
quantities of materials or if special preliminary services by us are necessary,
we shall be entitled to demand an appropriate advance payment in each case.
Advance payments made by the customer shall not bear interest.
§ 7 Set-off, Retention, Reduction by the Customer
The assertion of a right of retention against our claims and the set-off with
counterclaims shall only be permissible if the counterclaims on which the right
of retention is based or the counterclaims set off are undisputed or have been
legally established.
§ 8 Retention of Title
All goods supplied by us shall remain our property until settlement of all
claims – including future claims – arising from the business relationship with
the customer. This shall also apply to balance claims from current accounts to
which we are entitled against the customer.
If we have agreed with the customer that the purchase price debt is to be paid
by means of a check/bill of exchange procedure, the retention of title shall
also extend to the redemption of the bill of exchange accepted by us by the
customer and shall not expire upon crediting of the received check.
The customer shall be entitled to resell the goods subject to retention of
title in the ordinary course of business. The claims arising from such resale
against their customers are hereby assigned by the customer to us already at
this point up to full payment of our claims, and we hereby accept this
assignment. The customer shall be entitled to collect the claim against their
customers as long as we do not revoke this authorization. The customer shall
not be entitled to make other assignments with respect to the goods subject to
retention of title – in particular blanket and global assignments – transfers
by way of security, or pledges.
The processing or transformation of the purchased item by the customer shall
always be carried out for us. If the purchased item is processed with other
items not belonging to us, we shall acquire co-ownership of the new item in
proportion to the value of the purchased item to the other processed items at
the time of processing. The same shall apply to the item created by processing
as to the purchased item delivered under retention of title.
Upon our request, the customer must notify their customers of the assignment
and provide us with all necessary lists and documents required to assert the
claims.
In the event of conduct by the customer in breach of contract, in particular in
the event of default in payment or justified doubts about their solvency (e.g.,
insolvency, filing for insolvency proceedings), we may prohibit the resale or
use of the goods subject to retention of title and repossess them. The customer
agrees that employees of our company or persons commissioned by us may enter
their storage and business premises for this purpose. A demand for surrender of
the purchased item does not require withdrawal from the contract. Repossession
of the goods subject to retention of title as well as seizure of the goods by
us shall only constitute withdrawal from the contract if, insofar as not dispensable
pursuant to § 323 (2) BGB, we have unsuccessfully set a reasonable deadline for
performance and expressly declare withdrawal in writing; the same shall apply
to seizure by our company. If the requirements of sentence 1 of this clause in
this paragraph (6) are met, the customer’s authorization to collect the claims
assigned to us shall expire.
We undertake to release the aforementioned securities at our discretion insofar
as their realizable value exceeds the claims to be secured by more than 20%.
The customer must store the goods supplied under retention of title separately
from other goods. The customer is obliged to notify us immediately by
registered letter of any access by third parties, e.g., seizure of the goods
subject to retention of title and of the claims assigned to us. If damage
occurs to the goods subject to retention of title as a result of third-party
access, the customer shall compensate us for this. They shall also bear all
costs of intervention by us for the enforcement of our ownership rights.
The customer is obliged to insure the goods supplied under retention of title
adequately at their own expense against insurable risks. Claims against the
insurers arising from a case of damage are hereby assigned by the customer to
us in the amount of the invoice value of the goods subject to retention of
title that have been damaged.
§ 9 Warranty
The customer must check preliminary and intermediate proofs sent for correction
immediately upon receipt and notify any defects in writing within a period of 3
days.
The customer must inspect the delivered goods immediately upon receipt and
report recognizable defects in writing within a period of four days;
non-recognizable defects must be reported in writing within four days after the
customer or an agent of the customer has become aware of them.
A defect shall not exist in the case of only insignificant deviation from the
agreed quality or only insignificant impairment of usability. If improper
modifications or repair work are carried out by the customer or by third
parties, this shall also not constitute a defective delivery.
Insofar as deviations from the original in color reproductions or minor
deviations between proofs and the production print run are technically
unavoidable, these shall not constitute a defect and shall not give rise to any
liability on the part of the seller.
We shall only be liable for properties that the customer may expect based on
public statements made by the seller, the manufacturer (§ 4 para. 1 and 2
Product Liability Act) or their agents, in particular in advertising or
labeling of specific properties of the item, provided that the seller was aware
of such statements.
If the customer demands subsequent performance due to defects in the goods
supplied by us in the form of rectification or replacement, we shall have the
right to choose whether to provide subsequent performance by rectification or
replacement.
The seller shall not bear the expenses required for the purpose of subsequent
performance, in particular transport, travel, labor, and material costs,
insofar as the expenses increase because the purchased item has been
transported after delivery to a place other than the customer’s place of
residence or business establishment, unless the transport corresponds to the
intended use of the item.
The customer shall not be entitled to withdraw from the purchase contract due
to defects. The right to reduction shall remain unaffected.
Statutory recourse claims of the customer against the seller shall only exist
to the extent that the customer has not made agreements with their buyer that
go beyond statutory claims for defects.
For claims for damages, § 10 (Damages) shall otherwise apply. Further or other
claims of the customer against the seller and their vicarious agents due to a
material defect than those regulated in this § 9 are excluded.
Claims for material defects shall become time-barred after twelve months. The
period shall begin with the transfer of risk pursuant to § 438 para. 2 BGB. The
above provisions shall not apply insofar as the law prescribes longer periods,
§ 479 para. 1 BGB (right of recourse).
Over- or under-deliveries of up to 10% of the total order volume may not be
objected to by the customer. The quantity actually delivered shall be invoiced
in each case.
§ 10 Damages, Reimbursement of Expenses
Claims for damages, regardless of the legal grounds, with the exception of
claims for damages under §§ 1, 4 of the Product Liability Act, are excluded. Sentence
1 shall not apply if the damage was caused intentionally or by gross negligence
or is based on the absence of a guaranteed quality of the item; this shall not
apply insofar as claims for compensation between multiple manufacturers are
asserted against the seller pursuant to § 5 of the Product Liability Act. In
the event of breach of essential contractual obligations or injury to life,
body, or health, liability shall also apply in cases of slight negligence.
Liability is limited to foreseeable and typical contractual damages. This
limitation shall not apply if legal representatives or senior employees of our
company have caused the damage intentionally or by gross negligence or in the
event of breaches of essential contractual obligations, or if we are liable for
injury to life, body, or health or due to the assumption of a guarantee for the
existence of a certain quality of the item.
A claim for reimbursement of expenses shall be excluded under the conditions
set out in paragraph 1 for claims for damages.
The above provisions do not involve a reversal of the burden of proof to the
detriment of the customer.
§ 11 Storage and Insurance
The seller shall not be obliged to store templates, raw materials, printing
media, and other reusable items as well as semi-finished and finished products
beyond the date of delivery of the goods without an express prior agreement and
remuneration. This shall also apply to such items provided to the seller by the
customer.
The seller shall only be liable for loss, damage, or destruction of such items
provided by the customer insofar as this has been caused intentionally or by
gross negligence.
Items provided to the seller by the customer shall not be insured by the
seller. If the customer requires insurance for such items, they must arrange
this themselves.
§ 12 Property and Copyright Rights
The operational items used by the seller for the production of the ordered
goods, in particular templates, films, and printing plates, shall remain their
property and shall not be handed over to the customer. This shall also apply if
the production of such items is invoiced separately to the customer.
The customer shall be liable to the seller to ensure that the execution of
their order does not infringe any rights, in particular copyrights of third
parties. The customer shall indemnify the seller against all claims asserted by
third parties against the seller due to the infringement of their rights.
§ 13 Place of Performance, Jurisdiction, Severability
German law shall apply to these terms and conditions and the entire legal
relationship between our company and the customer, excluding the United Nations
Convention on Contracts for the International Sale of Goods (CISG).
Place of performance is Neuss.
If the customer is a merchant within the meaning of § 38 para. 1 ZPO, Neuss
shall be the place of jurisdiction for all mutual claims and obligations
arising from the business relationship, including claims relating to bills of
exchange and checks as well as disputes regarding the formation and validity of
the contractual relationship. Each contracting party may also sue the other at
their general place of jurisdiction.
Should one or more provisions of these general terms and conditions or of the
contracts of which they form part be or become invalid, this shall not affect
the validity of the remaining provisions of these terms and conditions or the
contracts. Should additions or interpretations of these terms or contracts
become necessary as a result of such invalidity, these shall be made in such a
way that the economic purpose of the invalid provision is preserved.
FD Textil GmbH & Co. KG, Düsseldorf, February 2024