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General Business Terms
1. General
1.1 All quotations and order acceptances issued by suki.International GmbH (hereinafter referred to as the Seller), as well as all deliveries made, shall be subject to the following Terms of Business and Sale. They also apply to future business relations between suki.international GmbH (Seller) and the Buyer. The terms shall only apply if the Buyer is a company as defined by § 14 of the German Civil Code.
1.2 Any terms other than these, especially purchase terms issued by the Buyer, are objected to, even if they have not been otherwise explicitly rejected in another manner. Upon accepting the goods, the Buyer explicitly waives application of his own business terms, even if those terms claim exclusivity.
1.3 Any oral agreements and assurances, as well as amendments and codicils, shall only be valid if in writing. Any deviation from this requirement shall only be possible if explicitly approved by the Seller’s executive director. The written form requirement shall be met by a confirmation letter or letter of acceptance issued by the Seller.
2. Prices
2.1 The Seller’s final prices are deemed to be net, in loose packaging and, in the case of raw goods, exclusive of sale packaging; in the case of trading goods the prices are inclusive of the sales packaging developed by the Seller, but exclusive of the relevant applicable sales tax.
2.2 Above a net individual order value exceeding € 250.00, the goods will be delivered carriage paid within the Federal Republic of Germany.
3. Payment terms
3.1 Unless otherwise agreed in writing, payment will fall due immediately upon receipt of invoice or delivery of the goods.
3.2 On principle, a discount of 3% will be allowed in the case of payment within 8 days after the due date. This deduction shall only be allowed if all invoices due at this time are settled, at the latest, simultaneously. This agreement does not relate to freight, postage, packaging or other shipping costs.
3.3 Even if the Seller does not issue a reminder, the Buyer shall be deemed to be in arrears 14 days after the payment falls due. Delayed payment interest amounting to 8 percentage points above the European Central Bank’s base interest rate will be demanded, unless a higher level of delayed payment interest has been contractually agreed.
3.4 We explicitly reserve the right to assert further damage claims in respect of delayed payment.
3.5 In order to discharge the debt, payments may only be made to the Seller or to a person provided with the Seller’s written encashment authorization.
3.6 If the Buyer does not make a due payment, and if the Seller has set the Buyer a grace period as required by § 323 of the German Civil Code, the Seller shall be entitled to demand immediate payment of his claim, regardless of any other payment terms, and to demand immediate payment of all outstanding claims, and to repudiate all existing contracts, including those unaffected by the delay.
3.7 The Seller will only accept discountable bills of exchange or cheques in lieu of performance on the basis of an explicit agreement. Credit notes relating to bills of exchange or cheques shall always be issued conditional upon receipt, with the value date in respect of the Seller’s bank being the date on which the Seller has final disposal of the item in question. In the event of bills of exchange being accepted, the Buyer shall bear any collection and discount costs. These must be refunded immediately together with the invoice amount. As the Seller, we assume no liability for the timely presentation and protestation of the bill of exchange.
3.8 On principle, all payments will be credited against the oldest debt, regardless of any deviating terms issued by the Buyer.
3.9 Partial performances and deliveries may be settled separately.
4. Quotations and delivery terms
4.1 The Seller’s quotations are offers of performance, and represent a request to submit an offer. They are subject to change, unless the quotation explicitly states that they are binding. Orders received with reference to the Seller’s offer shall require the Seller’s explicit written acceptance in order to take effect.
4.2 Delivery of the goods is conditional on the Seller being himself supplied in a correct and timely manner. The Seller will notify the Buyer immediately regarding the non-availability of the subject of performance.
5. Examination obligation
5.1 The party issuing the purchase order is obliged to examine the delivered goods and to issue a written notice of any defects immediately, at the latest 8 days following goods receipt. The deadline refers to the Seller’s receipt of the notice of defect. A written notice of defect which is issued and received in writing following expiry of the 8 days shall be deemed to be late. In respect of concealed defects, which could not have been detected notwithstanding an examination, a notice of defect must be issued immediately following detection. The delivered goods shall be deemed to have been approved following expiry of these deadlines relating to notices of defect, and it shall no longer be possible to extrapolate any rights from the defects asserted.
5.2 If the defect consists of a short delivery the full invoice amount must be paid, and in the event of over-delivery, the price for the goods actually delivered must be paid.
6. Retrospective performance
6.1 If the item purchased is defective, and the Buyer has met his obligations pursuant to Clause 5.1 of these Terms, the Seller shall have the option of either rectifying the defect or supplying an item which is free of defects. This presupposes that the defect involved is not a minor one. If both types of retrospective performance are either impossible or disproportionate, the Seller shall be entitled, without prejudice to his rights deriving from § 275 Paragraphs 2 and 3 of the German Civil Code, to refuse retrospective performance.
6.2 Furthermore, retrospective performance may be refused so long as the Buyer does not meet his payment obligations to the Seller to an extent corresponding to the non-defective part of the performance effective. This does not apply if the defective performance is worthless to the Buyer.
6.3 If retrospective performance should fail, the Buyer shall have the option of either abating the purchase price accordingly, or repudiating the contract in accordance with the statutory provisions, having set a grace period. Retrospective performance shall only be deemed to have failed following an unsuccessful second attempt thereat.
6.4 The statutory instances where a grace period need not be set shall remain unaffected.
7. Limitation of actions relating to quality defect claims
7.1 Quality defect claims shall become statute-barred 12 months following delivery of the purchased item. This does not apply in cases of injury to life, limb or health. Furthermore, this does not apply if the Seller, his legal representative or a person employed in the performance of an obligation for which the Seller is vicariously liable is in premeditated or grossly negligent breach of duty or of a cardinal obligation. Furthermore, the limitation of actions does not apply in respect of a building or an item which is normally used for a building and which caused the defect in the building. In all such cases, claims shall only become statute barred in accordance with the statutory provisions.
7.2 If the entitlement to retrospective performance has become statute barred, any claims to abatement or to the exercise of a right of repudiation shall be ruled out.
7.3 However, in the event of 7.2 taking effect, the Buyer may refuse payment of the purchase price to the extent that he is entitled to do so on the basis of repudiation or abatement.
7.4 § 479 of the German Civil Code shall remain unaffected.
8. Liability in the context of recourse pursuant to § of the German Civil Code
8.1 If the Buyer resells an item purchased from the Seller to a consumer, or a claim is filed against the Buyer pursuant to § § 478, 479 of the German Civil Code, he shall only be entitled to the rights specified in § 478 of the German Civil Code if he informs the Seller of the defects in writing within 8 days of becoming aware of them.
8.2 The Buyer shall not be entitled to the rights specified in § 478 of the German Civil Code if the defects arising in respect of the consumer are such that the Buyer should have been able to detect them in the context of his examination obligation.
8.3 The claim falls away if the defect is a minor one as defined by § 439 of the German Civil Code.
8.4 Reimbursement of costs is limited to those costs which, having taken sufficient precautions, the Buyer would have incurred in order to rectify the defect, and a claim for such costs may only be asserted to the extent that the Buyer has not concluded any agreements going beyond the statutory defect claims.
8.5 Finally, reimbursement for costs shall be limited to predictable and contractually typical damages.
8.6 Reimbursement for costs will be allowed in the form of a credit note.
9. Compensation
9.1 Unless otherwise provided for before, any further claims on the part of the buyer deriving from a breach of secondary contractual obligations, illicit action or otherwise tortious liability, as well as claims for reimbursement of costs with the exception of claims pursuant to § 439 Paragraph 2 of the German Civil Code, shall be precluded; this applies, in particular, to losses unrelated to the purchase object as well as to compensation for lost profits.
9.2 The exemption from liability provided for in the preceding paragraph shall not apply to losses arising from an injury to life, limb or health based on a culpable breach of duty by the Seller, his legal representative or a person employed in performing an obligation for which the Seller is vicariously liable. The exemption also does not apply to other losses based on a premeditated or grossly negligent breach of duty by the Seller, his legal representative or a person employed in performing an obligation for which the Seller is vicariously liable.
9.3 It also does not apply when assuming a guarantee and warranting a quality if a defect covered precisely by such a guarantee or warrantee gives rise to the Seller’s liability.
9.4 A guarantee or warranty in the sense of an intensification of liability, or the assumption of a specific obligation to meet claims, shall only be deemed to have been issued if the terms ‘guarantee’ or ‘warranty’ are explicitly stated.
9.5 The above shall apply analogously in the event of a reimbursement of costs.
9.6 No warranty is assumed for losses arising from the following causes: Inappropriate or improper use, defective assembly by the party placing the purchase order or a third party, natural wear-and-tear, incorrect or negligent handling, inappropriate operating materials, defective structural works, unsuitable substrate, substitute materials, chemical, electro-chemical or electrical factors, or improper modification or repairs carried out by the party placing the purchase order or a third party without the Seller’s prior consent.
9.7 This does not apply if the cause of the damage is based on premeditation or gross negligence on the part of the Seller, his legal representative or a person employed in performing an obligation for which the Seller is vicariously liable. It also does not apply if the damage derives from culpable injury to life, limb or health. Nor is liability precluded in the event of the assumption of a guarantee if a breach in precisely this regard gives rise to the Seller’s liability.
9.8 If the damage is based on a premeditated or grossly negligent breach of duty, or on the culpable breach of a cardinal obligation, or on culpable injury to life, limb or health, liability shall be limited to contractually typical and predictable damages.
9.9 A guarantee or warranty in the sense of an intensification of liability, or the assumption of a specific obligation to meet claims, shall only be deemed to be issued if the terms ‘guarantee’ or ‘warranty’ are explicitly stated.
10. Reservation of title
10.1 Deliveries are subject to reservation of title. Until full payment of all claims deriving from the business relationship, including all secondary claims, the delivered goods will remain the property of the Seller. The Buyer may neither pledge, nor transfer by way of security, the goods to which title is reserved. The Buyer must immediately notify the Seller in writing of any encroachment by third parties.
10.2 If the Buyer is in payment arrears, the Seller shall – within the legal limits of the right to help oneself – be entitled to remove the goods to which title is reserved, and to enter the Buyer’s premises for this purpose.
10.3 Neither taking back nor distraint of the goods shall be deemed to constitute a repudiation of the contract, unless such repudiation is explicitly stated. The repudiation conditions remain unaffected. The Buyer shall bear the costs incurred by taking back and distraining the item.
10.4 The Buyer shall be entitled to combine the goods to which title is reserved with third-party goods in the course of normal business dealings. In that event the Seller shall acquire co-ownership of the new items resulting from the combination in proportion to the value of the goods combined with each other, or the value of the newly created goods. The same shall apply in the event of commingling.
10.5 The Buyer herewith already transfers co-ownership of the item if the Buyer’s item is to be considered the main item. If the Buyer sells the combined or newly-created items co-owned by the Seller, he herewith assigns his purchase price claim vis-à-vis any third parties to the Seller proportional to the value of the co-ownership, and herewith authorizes the Seller to collect the claim in his own name.
10.6 If the item to which title is reserved is processed to create a new item, the Seller shall be deemed to be the processor, and the Buyer shall be deemed to have been commissioned by the Seller.
10.7 The Buyer is entitled to sell the goods to a third party in the course of normal business dealings. The Buyer herewith already assigns all claims vis-à-vis third parties deriving from the resale to the Seller by way of security. The Buyer is authorized and obliged to collect the claim vis-à-vis the third party. This right shall lapse automatically if the Buyer ceases payment.
10.8 If the realizable value of the security exceeds 150% of the value of the secured claim, the Seller will release the excess amount if so requested by the Buyer. The cover limit is 110% of the realizable value of the security.
11. Plea of insecurity
If it should become apparent to the Seller that his entitlement to counter-performance is at risk due to the Buyer’s lack of ability to pay, the Seller shall be entitled to refuse the performance incumbent upon him until counter-performance has been effected or a security has been provided.
12. Transfer of risk
12.1 Shipping shall be at the Buyer’s request and expense. Even in the case of carriage paid delivery, the risk shall be transferred to the Buyer upon dispatch.
12.2 Unless otherwise agreed in writing, the shipping option chosen shall be at the Seller’s discretion and at the Buyer’s risk.
12.3 If the goods are transported by the Seller’s personnel, the Seller shall only be liable subject to the provisions in Clause 9 of these Terms.
13. Deliveries
13.1 The Seller will deliver the ordered goods to the Buyer during the latter’s hours of goods acceptance. In this regard, the delivery person’s arrival during the hours of goods acceptance shall be deemed to constitute delivery during the hours of goods acceptance.
13.2 Should delivery be delayed for reasons for which the Seller is not responsible, the Seller shall not be liable for any losses accruing to the Buyer as a result of the delay.
14. Acceptance delay
14.1 If the Buyer does not accept individual deliveries or partial deliveries offered to him in an orderly manner, the Seller may set the Buyer an appropriate deadline for acceptance. In this regard, the Seller is entitled to effect partial performance to a reasonable extent.
14.2 The Buyer shall bear all costs associated with the acceptance refusal, in particular warehousing costs. If the buyer does not accept the goods within the deadline, the Seller shall be entitled to repudiate the contract and to seek damages on foot of non-performance.
14.3 In that event, the Seller shall have a flat-rate claim for damages against the Seller amounting to 10% of the non-accepted delivery. The Seller retains the right to prove that he incurred a higher level of losses.
15. Right of retention / offsetting
15.1 The Buyer shall only have the right of offsetting if his counter-claims have been recognized by declaratory judgement, explicitly accepted by the Seller, or if the claims involved are ready for decision.
15.2 The Buyer shall only have a right of retention if his counter-claim has been recognized by a declaratory judgement, or is undisputed or accepted, or if the defects in the goods are apparent. In that event, the Buyer shall only be entitled to retention if the retained amount is proportional to the defects and the likely costs of retrospective performance.
16. Packaging
16.1 Packaging will only be taken back subject to the provisions of the German Packaging Ordinance. The Buyer will bear the costs of taking back the packaging.
16.2 The Seller will not take ‘Green Dot’ packaging back.
16.3 The Buyer may return transport packaging at the place of performance. If the transport packaging is intended for reuse, such as pallets, it must still be in a usable condition. Transport packaging intended for reuse, or which has become unsuitable for reuse, must be clean, free of foreign substances, and sorted according to the different packaging types. Otherwise, the Seller shall be entitled to claim the extra disposal costs incurred from the Buyer.
17. Assignment
The Seller shall be entitled to assign his claims.
18. Trade name
The Seller’s trade name is a registered trade name and enjoys the protection of the laws governing trade names, trademarks and patents. If trade names are used without being designated accordingly, this shall not be deemed to mean that [the goods] are not marked accordingly. The good name and reputation of the brand must not be compromised. The Buyer must refrain from any actions which could have a negative impact on the good name and reputation of the Seller and his brands. The Seller will seek damages if the Buyer acts in breach of the above.
19. Place of performance / legal venue
19.1 The place of performance is Landscheid.
19.2 The legal venue for all legal disputes associated with the Seller’s deliveries shall be Wittlich if the Buyer is a merchant as defined by German law, and shall always be Wittlich if the Buyer does not have a general legal venue in Germany or if, following contract conclusion, the Buyer has transferred his domicile or usual residence from Germany, or if his domicile or usual residence is not known.
20. Applicable law
The territorial law of the Federal Republic of Germany shall have sole applicability, precluding application of the UN Convention on Contracts Governing the International Sale of Goods dated April 11th 1980 (CISG), even if the purchase order was issued from abroad, or the delivery was made abroad.
21. Data protection
Pursuant to §§ 33,28 of the German Data Protection Act, we herewith note that all data relating to customers and suppliers are stored by the Seller with the aid of electronic data processing.
22. Partial invalidity
Should individual provisions of these Terms be ineffective, the effectiveness of the remaining provisions shall not thereby be affected. The invalid provisions will be replaced by a legally admissible provision which, in commercial terms, most closely approximates to the intended purpose.
Stand: April 2005
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