Version: February 1st, 2008
STANDARD TERMS AND CONDITIONS OF
MÜLLER & MEIRER LEDERWARENFABRIK GMBH
KIRN / GERMANY
1.1. Müller & Meirer shall render all deliveries, services, offers and all other legal transactions exclusively on the basis of the following Standard Terms and Conditions. These Standard Terms and Conditions shall apply also for all subsequent deliveries, services, offers and all other legal transactions, even if Müller & Meirer did not expressively refer to these Standard Terms and Conditions, but if these Standard Terms and Conditions have been received by the Customer on the occasion of a former order confirmed by Müller & Meirer.
1.2. Any standard terms and conditions of the Customer are refused hereby expressively by Müller & Meirer even if Müller & Meirer has not expressively opposed to accept them. Other deviating terms and conditions of the Customer or special agreements will exclusively apply if they have been accepted by Müller & Meirer in writing.
Offers and Conclusion of the Contract
2.1. Offers of Müller & Meirer shall - in absence of an other agreement - always be subject to confirmation, unless they are expressly designated as binding. Verbal and additional agreements are only binding if Müller & Meirer did confirm them expressively.
2.2. Orders of the Customer are only accepted by Müller & Meirer if the acceptance was made by Müller & Meirer in writing. If Müller & Meirer did not confirm a verbal agreement or an agreement made by telephone the invoice itself has to be considered as the confirmation.
2.3. If the order confirmation deviates from the order of the Customer the deviations are to be considered as accepted by the Customer if the Customer does not immediately objects to them in writing.
3.1. Prices shall be quoted net "ex works". Unless otherwise agreed upon Müller & Meirer is entitled to charge the prices valid on the date of delivery plus the VAT.
3.2. If the value of the order does not exceed 200.- €or in the case that the Customer orders partial deliveries not exceeding the value of 200.- €of each partial delivery Müller & Meirer is for each delivery entitled to charge a flat rate for shipment of 5.- €for transportation within Germany and Austria, for shipment within other countries of Europe of 10.-€. Special packing and packing according to the Customer's order have to be separately paid by the Customer.
3.3. If an order of the Customer arrives later than at 12.00 GMT and if Müller & Meirer is obliged to dispatch the goods on the following day Müller & Meirer is entitled to charge the express delivery cost as follows:
Deliveries within 24 hours: Up to 5 kg = 13,40 €; up to 31,5 kg = 27,70.- €.
Deliveries within the following day:
- Until 12.00: up to 5 kg = 15,90 €, up to 31,5 kg = 30,20 €.
- Until 10.00: up to 5 kg = 34,40 €, up to 31,5 kg = 48,70 €.
4.1. Delivery periods shall only be binding if they have been agreed upon as binding in writing by the Customer and Müller & Meirer. The period is considered to be kept if the goods have left Müller & Meirer before expiration of the term. The period can be reasonable extended in events of force majeure and in all cases of unforeseen obstacles occurring after conclusion of the contract that Müller & Meirer is not responsible for.
4.2. Partial deliveries are customary and permitted unless the Customer did not object them expressively when ordering or if there is qualified interest of the Customer to get the delivery as a whole.
4.3. After expiration of the delivery period the delivery period automatically shall be postponed by 12 days. Only if Müller & Meirer defaults in rendering the postponed 12 day term the Customer shall have the right of recission in writing.
4.4. Any further claims are excluded unless the defaults are based on gross negligence or wilful conduct on Müller & Meirer's part.
4.5. In the cases of default in taking delivery Müller & Meirer is entitled - after a expiration of a period of grace - to claim for taking delivery as a whole or as a part of the order and / or to cancel the contract or to claim for damages.
Retention of Title
5.1. Müller & Meirer retains full title of the delivered goods until complete payment is made of all payment claims including any future payment claims.
5.2. The Customer hereby assigns to Müller & Meirer for securing all claims arising from the business relationship between Müller & Meirer and the Customer all claims and receivables from the resale of the goods subject of retention of title within the ordinary and proper course of business dealings and if claims from resales have not been assigned in advance to third parties. The Customer is only entitled to resell the goods subject of retention of title if all ancillary claims also will pass to Müller & Meirer. The Customer is not authorized to dispose in another way. The Customer is on the request of Müller & Meirer obliged to inform the debtors and third-party customers of the existence of the assignment.
5.3. Müller & Meirer is on his on disposal obliged on the request of the Customer or of a third party concerned to release the assigned claims if they exceed the over all claims that need to be secured of Müller & Meirer by more than 20 %.
5.4. The Customer is not authorized to dispose of the goods being under retention of title of in another way. The Customer may neither pledge the goods subject of the retention of title nor assign them as security to third parties or sell them in the case of insolvency.
5.5. In the case of any attachment the Customer is obliged to inform the creditors, the bailiffs or the trustee about the retention of title of Müller & Meirer. The Customer is further on obliged to inform Müller & Meirer immediately in the event of attachment, arrest or other disposal of third parties.
If the sales will take place to Customer not residing in Germany and if the retention of title will not have the same legal validity as in Germany and if in the countries abroad other legal titles are equally admissible to retain the Customer is obliged to inform Müller & Meirer about the these other legal possibilities. Müller & Meirer is entitled to execute the other legal possibilities of such right of retention.
5.6. The Customer shall be obliged to insure the delivered goods against theft, breakage, fire, water and other damages.
5.7. In the event that the Customer commits contractual violations, Müller & Meirer shall be entitled to reclaim the goods and the Customer shall be obliged to return them.
5.8. If the claims for the payment of the purchase prices of Müller & Meirer against the Customer are regulated and settled by a special organization which guarantees the purchase price ("Delcredere"), Müller & Meirer is entitled to transfer the title and claims against the Buyer to such special organization upon shipment of the goods, subject to the condition precedent of payment of the purchase prices by such special organization. The Customer is only released upon payment by the "Central Regulator".
6.1. Payments on the invoices are due and payable "net cash" within the period agreed upon without any deductions. If no payment is made within this period the default arises automatically without further reminder. If no period for the payment is agreed upon the invoice is due and payable immediately.
6.2. Müller & Meirer is entitled at their on discretion to credit payments to the Customers debts if there are more than one invoice is unpaid.
6.3. Payments by means of cheques or promissory notes are accepted only if agreed upon and are only fulfilling if the sums are unconditionally at Müller & Meirer's disposal on one of their bank accounts. The Customer is obliged to bear all the costs for the payment.
6.4. In the event of a delay in payment all unpaid invoices of the Customer become due and payable irrespectively of a period for payment agreed upon.
6.5. In the event of a delay in payment the Customer is obliged to pay interest in the amount of 8 (eight) percentage points above the German Basic Interest Rate (Para. 247 German Civil Code (BGB)). The Customer and Müller & Meirer are both at liberty to prove that the default damages are smaller or higher.
In the event
- of a delay in payment or
- of a significant deterioration of the financial situation of the Customer or
- Müller & Meirer becomes aware of this deterioration or of the prospective
inability of the Customer to pay or
- the paying habits deteriorate in the course of the business relationship
Müller & Meirer is entitled
to demand payments in advance of the payment periods agreed upon,
to retain outstanding deliveries,
to rescind from the contract sustaining for the possible claims for damages,
to demand payment before promissory notes accepted are due and payable,
to carry out due and outstanding deliveries only against prepayments in advance or security deposit.
6.6. The Customer can only retain payments or offset claims which are not in dispute or which are legally effective.
Liability for delivery faults
7.1. Deficiency claims or other complaints about defects have to be notified in writing immediately after inspection of the goods and not later than one week after receipt of the goods. The claims and complaints have to be substantiated. If no deficiency substantiated complaint or no other claim about defects is made within the period of one week the delivery shall be regarded to be in conformity with the agreement or the conditions of the law as proper quality.
7.2. No claims or complaints for quality etc. shall be caused on a merely insignificant deviation in measures, shape, material and color from a collection of samples unless these deviation does not affect the functionality Müller & Meirer and the Customer agreed upon. This is especially applicable in the respect that leather is a product of nature for which insignificant deviations in color, structure of the surface and quality can not be excluded.
7.3. Müller & Meirer is not responsible for any advertising statements concerning the quality of the goods if these statements are made by the commercial partners of Müller & Meirer or their vicarious agents.
7.4. If the claim or complaint concerning the goods is acknowledged by Müller & Meirer and if the claim or the complaint are made in writing within the period of no. 7.1. the subsequent performance of Müller & Meirer shall comprise, at Müller & Meirer's option, either the rectification of the goods or a substitution of the delivery. For the rectification of the goods Müller & Meirer has to be given the opportunity in a reasonable manner an time. If such opportunity is not granted Müller & Meirer shall be deemed to be released from the liability for delivery faults. If Müller & Meirer will not rectify the goods within the reasonable period the Customer is entitled to rescind from the agreement or to reduce the price of the goods. Any other claims of the Customer are excluded, especially claims for compensation damages of any kind, including damages which have not arisen on the delivery itself.
7.5. This exclusion of liability does not apply in the event of wilful misconduct or gross negligence or if the liability cannot be excluded because of lack of warranted characteristics of the goods.
7.6. The time period for liability will not start anew when the Customer receives the rectified or the substituted goods.
7.7. Müller & Meirer is not responsible for faults arising from documents or descriptions etc. submitted by the Customer. Müller & Meirer has the right to reject the rectification of defects if the Customer fails to meet its obligations. Redeliveries of goods may only be effected subject to prior approval by Müller & Meirer.
7.8. Any claims for damages of the Customer against Müller & Meirer as well as against its legal representatives and vicarious agents - on whatever legal ground - in particular for defects in the goods delivered, culpable impossibility of delivery or default in delivery, breach of contract, breach of preliminary duties during the contract negotiations, and for torts, act, are excluded. This does not apply in cases liability is cogent under the Product Liability Act, in cases of wilful misconduct, gross negligence, damage to life, body or health.
7.9. If the Buyer is an entrepreneur or a legal entity ruled by public law, the warranty period is one year, warranty for special lots and second-grade goods is fully excluded. The limitation period starts on the day the goods are delivered if nothing different is stipulated.
7.10. If a consumer has asserted claims for defectiveness of the goods against the Customer, and if the Customer had already complied with its duty to immediately notify Müller & Meirer about the defect and if the defect had not been compensated before, the claim of the Customer against Müller & Meirer, based on liability for material defects and defects in title and on possible claims for compensation for expenses incurred by the Customer in the relationship with the consumer for failure of subsequent performance or breach of duty, is limited to an amount not exceeding the double sum of the net purchase price arising from the contractual relationship between the Customer and Müller & Meirer.
7.11. For unjustified complaints, the costs incurred by Müller & Meirer are charged to the Customer's account.
7.12. If the Customer asserts claims, the Customer must prove the existence of all prerequisites for such claims.
Müller & Meirer is entitled to process and use - as far as required by law or necessary for maintaining the business relationship - the personal data of the business partner arising from the contractual relationship, the German Federal Data Protection Act being respectively observed with regard to personal data. The Buyer waives a separate notification of the initial storage of data regarding its person.
Place if Performance, Jurisdiction, Applicable Law
9.1. The place of performance shall be Kirn. The place of jurisdiction shall be Bad Kreuznach. Müller & Meirer, however, is entitled to litigate at the place of jurisdiction of the Customer.
9.2. It is understood that German law is applicable, excluding the UN Sales Convention (CISG).
9.3. Invalidity of any provision does not affect the validity of the remaining provisions.