Captiva GmbH Terms and Conditions of Sale and Delivery

§ 1 General

(1) All sales, packaging and any other services including follow-up business transactions with the buyer shall be subject to the following conditions and the following conditions shall apply, provided that no other terms have been agreed with the buyer in writing. Conflicting or differing conditions of the buyer shall be non-binding for us, even if they have not explicitly been rejected by us, or if the buyer’s conditions provide that differing conditions of the supplier shall not be valid or that they shall be valid upon written acknowledgment only or that delivery shall be carried out without reservation.

(2) Our conditions shall be deemed accepted and conflicting conditions shall be deemed abandoned, if and when upon receipt of our offer a detailed objection referring to the extent and in the manner of the conditions to be acknowledged has not been received by us within 10 days. If an offer has not been sent, the 10-day term shall commence upon receipt of the order confirmation.

§ 2 Offers, Contract Conclusion, Damages

(1) The buyer shall be bound by the offer. Our offers are subject to change. We reserve the right to replace items which cannot be supplied for production reasons or which cannot be supplied in the colours selected by similar items and/or similar colours. Offers by the buyer can be accepted within 14 weeks. Delivery shall be carried out within the scope of the Captiva GmbH commercial credit insurance amount for the buyer only. Customers shall authorise us to request information from their banks. Subject to any possible kind of functional and technical alterations or differences in models given in our advertising material and technical data such as changes in construction and design, processing and shape, differences in colour excepted until delivery, unless the object of purchase is significantly changed due to management requirements, material features or reasons of model policy. The samples which the offer is based on shall merely serve as an approximate indication. The buyer cannot derive a claim for performance from errors, typing mistakes, differences in catalogues and pictures and samples provided. If calculation errors occur, the contract may be adjusted. Contracts come about upon written preparation of the acknowledgment of order, but not later than upon delivery.

(2) The buyer shall be obligated to remunerate us with 35 % of the total order value (plus valid VAT) as overall compensation for damages in the event of an unjustified refusal to fulfil the contract or defection from the contract, unless he/she provides evidence of the damage being significantly lower or not existing at all. If we give evidence of a greater damage we shall be entitled to demand compensation.

§ 3 Dates and Conditions of Delivery

(1) Dates of delivery which have been agreed to be either binding or without obligation shall be in writing. In case of doubt, dates of delivery shall be considered without obligation. In the event of force majeure, industrial actions and other interruptions without any own fault and which exceed 1 week or are supposed to exceed 1 week, delivery dates are prolonged by the duration of the relevant obstacle, but no longer than by 6 weeks. The same applies if and when these circumstances incur with one of our presuppliers. If we inform the buyer about the reason of the obstacle without delay and as soon as it becomes clear that the delivery date cannot be met and that the obstacle will last longer than 5 weeks, the buyer shall be entitled to withdraw from the contract. Claims for damages by the buyer shall be excluded.

(2) After the expiration of the delivery term, a subsequent delivery term of 18 additional days for completing delivery shall commence automatically. After the expiration of these 18 days, the contract shall be deemed to be terminated and any claims for damages shall be excluded. Withdrawal from the contract shall not be effective in the event that the buyer declares within the subsequent delivery term that he/she insists on the execution of the contract. A delivery term shall only commence after any and all questions required for processing the order have been entirely clarified with the buyer and upon receipt of a down payment or advance payment that may have been agreed. In the event of subsequent contract amendments and/or modifications significantly affecting the scope of delivery or the quantity delivered, modalities of the delivery or the contractual object, delivery terms shall commence again.

(3) Delivery dates shall be considered met upon shipment of the item of delivery. Sale and delivery of the goods shall be subject to correct and punctual supply to ourselves. We are entitled to carry out partial deliveries. Meeting our obligation to deliver requires the punctual and correct fulfilment of the buyer’s obligation. The same shall apply to obligations from other similar contracts in a permanent business relationship.

(4) If the buyer wants to claim damages instead of performance, he needs to give us a deadline of 1 week, threatening to reject fulfilment after the expiration of this deadline. This 1-week term starts on the submission date of the buyer’s message by registered post. This provision shall be valid instead of the above mentioned withdrawal only if we have received this deadline by the buyer within the subsequent delivery term. Claiming for damages instead of performance shall be ruled out in the event of slight fault. If the buyer is entitled to claim both for delivery and for damage caused by delay, this damage shall be restricted to acts of gross negligence and deliberate acts of breach of duty (including by our agents). In both cases damages shall be limited at all times to predictable typical damages.

§ 4 Dispatch, Risk Assumption, Place of Fulfilment

(1) Unless otherwise specified in writing, place of fulfilment of all contractual obligations shall be our warehouse in D-41460 Neuss, Breslauer Str. 6. If goods are shipped to a location other than the place of fulfilment (delivery by carrier), the risk shall be transferred to the buyer upon passing the goods on to the haulier or upon leaving our warehouse. This shall also apply when shipping the goods within the same city or in case of transporting the goods through our own staff and/or with our own vehicles. If the goods are ready for dispatch and shipment or acceptance is delayed for reasons which we cannot be held responsible for, the risk shall be transferred to the buyer upon delivery of the advice of readiness for dispatch.

(2) The goods are delivered from our stock. Shipping and handling costs shall be borne by the buyer. In case of forwarding by rail, wheelage from registered office to the parcels depot shall not be charged.

(3) The goods shall be delivered bound in boards or as hanging garments. Packaging shall be charged, if and to the extent to which the goods are delivered in cases or if and to the extent to which the buyer requests special packaging. If rented containers are being used, the buyer shall bear the cost of freight. Lease rental charges shall be paid by us.

(4) Dispatch of the goods by us is uncovered, unless it has been explicitly agreed to take out an insurance at the expense of the buyer.

 § 5 Prices and Payment

(1) Our prices shall be subject to a statutory value added tax at the prevailing rate.

(2) Invoices shall be issued at the date of delivery and the supply of the goods, respectively. As a matter of principle, the due date (fixing the value date) cannot be delayed. If the seller accepts bills of exchange instead of cash, cheques or bank transfers, a supplement of 1 % of the amount of the bill of exchange shall be charged if the bill of exchange is taken in on the 61st day after invoicing and delivery of the goods. Any modifications to the settlement shall be announced 3 months in advance by the buyer. Interests shall not be granted in any case. Payments shall be used for settling the oldest accounts payable plus late interest. A cash discount shall only be allowed if all existing invoices relating to the business relationship have been settled. The outgoing postmark shall determine the date of the completion of the settlement. As to bank transfers, the day prior to the credit note of the seller’s bank shall be considered the date of completion of the payment. If payment is effected after the due date, interest shall be charged at a rate of 8 % above the prevailing base rate of the Deutsche Bundesbank.

(3) We shall not be obligated to execute any further deliveries from any existing contract, unless all amounts due have been fully paid including interest. We reserve the right to claim damage for delayed payments. We are entitled to demand payment in cash prior to delivery and handover or to withdraw from the contract or to claim for damages with the term of payment being discontinued in the events of delayed payment by the buyer and imminent illiquidity or any other material deterioration to the buyer’s financial circumstances, provided we have set a 12-day period of grace for outstanding deliveries arising from any existing contract.

(4) An offset against and retention of amounts due shall be allowed for undisputed and legally binding claims only. Any other deductions (e. g. postage) shall be prohibited.

§ 6 Notice of Defects/Warranty

(1) The buyer shall lose his/her warranty claims in case of obvious defects and complaints if he/she fails to notify us in writing about the defects and complaints within 8 days upon receipt of the goods. The buyer shall be obligated to notify us immediately upon detection of hidden defects. No complaint can be filed in case of minor and technically unavoidable differences in quality, colour, weight, equipment and design. The aforesaid is also true for commercial differences, unless we have declared in writing that we will deliver according to sample.

(2) In case of justified complaints, we shall be entitled to claim either remedy and/or delivery of substitute goods free of defects within 12 days after reception of the returned goods. In this case, we shall have to bear the freight costs. If the remedy is unsuccessful, the buyer shall only be entitled to either reduce the purchase price or to withdraw from the contract.

(3) As a matter of principle, the buyer shall not be entitled to claim for damages unless the damage can be attributed to a grossly negligent or deliberate breach of duty by us or by one of our agents, or else in the event of a culpable breach of duty which involves loss of life, injury to body or injury to health.

§ 7 Reservation of Ownership

(1) All goods delivered by us shall remain our property until all our claims arising out of the entire business relationship with the buyer, including all and any principle and subsidiary claims, claims for compensation and payment of cheques and bills are settled. The aforesaid reservation of ownership continues to exist when individual claims by the buyer are integrated into an outstanding invoice and the balance is carried forward in a new account and accepted as such.

(2) The buyer may only dispose or process the goods subject to a reservation of ownership in the course of his normal business transactions and only if his financial situation shows no tendency to deteriorate.

(3) If the value of the securities in our favour exceeds our total claims by more than 10 %, we shall, on the buyer’s request, be obliged to release certain securities at his/her own discretion. It is not admissible to transfer the ownership of the goods subject to a reservation of ownership by way of security or to pledge them. We must be notified immediately about any attachments, whereby the attachment creditor shall have to be indicated. If we exert our right to reserve our ownership and take back the object of the delivery, the contract is deemed to be withdrawn only if we expressly declare our withdrawal from the contract. We shall at our own discretion satisfy our claims by privately selling the goods taken. The buyer shall store the goods subject to reservation of ownership free of charge for us. The buyer is obliged to insure the goods against the usual risks such as fire, theft and water damages to the usual extent. The buyer shall hereby assign any claims for compensation that he may have against insurance companies or other third parties obliged to pay compensation due to damages of the aforementioned kind to us to the extent of the amount of the invoiced value of the goods. We shall hereby accept the assigned claims.

§ 8 Choice of Applicable Law

This agreement is to be governed by and construed in accordance with the law of the Federal Republic of Germany. The United Nations convention on agreements on the international sale of goods dated April 11th 1980 (CISG) shall be excluded.

§ 9 Jurisdiction

Exclusive jurisdiction for any dispute arising from this contract shall be with the Local and Regional Courts of Neuss-Duesseldorf in case the buyer is a merchant or a public body. The same shall apply if the buyer is not subject to jurisdiction in Germany or if his/her residence or customary domicile has been relocated from Germany upon conclusion of the contract or if his/her residence or customary domicile at the time the claim was raised is unknown. We are also entitled to bring an action against the buyer at a different court with local and subject-matter jurisdiction.

§ 10 Partial Invalidity Clause

If one or several of the above conditions should be or become invalid, this does not affect the validity of the other conditions and the validity of the contract.