General Terms and Conditions of Sale
1. APPLICATION / SCOPE
These Terms and Conditions (GTC) apply to contracts for the delivery of goods in accordance with the contract entered into between Tradewell and it’s customer (Buyer, purchaser etc.) These GTC of Tradewell shall also apply to all future transactions with the Buyer, even if no further express reference is made to these GTC in individual cases. Any terms and conditions of the buyer that conflict with or deviate from these GTC shall not apply unless Tradewell has expressly agreed to their validity in writing. These GTC shall also apply if Tradewell executes the orders without reservation in the knowledge of conflicting or deviating conditions of the buyer. Even then, the general terms and conditions of the buyer shall not become part of the contract. These GTC shall apply to all orders, whether placed on the Internet, in writing, by telephone or by any other means. In addition, unless otherwise stipulated in these GTC, the provisions of the German Commercial Code, the provisions of the German Civil Code and the Incoterms of the International Chamber of Commerce in Paris shall apply in the version current at the time of delivery or performance. Individual agreements made with the Buyer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation by the Seller shall be authoritative for the content of such agreements.
2. Offer and Formation of Contract
Subject to written deviant agreement, Tradewell’s quotations shall remain non-binding and subject to acknowledgement. The buyer's order with Tradewell is a binding offer by the buyer. Tradewell is entitled to accept this offer within 3 weeks by sending an order confirmation or to send the ordered goods to the buyer within this period. The timely dispatch of the order confirmation or the ordered goods shall be sufficient to meet the deadline. Order confirmations shall be sent to the address given by the buyer in his order or, in the case of an ongoing business relationship, to the last address given. Tradewell may accept offers by the Buyer within three weeks of receipt. Any supplements, amendments or oral agreements shall only become legally effective upon acknowledgement in writing or text form by Tradewell. The contract with the Buyer will arise subject to the correct and timely supply of goods to Tradewell by its suppliers. This so- called availability disclaimer depends on a matching legal transaction having been entered into with the supplier, and the non-delivery not being attributable to Tradewell. Tradewell must promptly inform the Buyer of any non-delivery by its own supplier and, in the event that the Buyer withdraws from the contract, to promptly reimburse the Buyer’s corresponding payments, if appropriate. Dimensions, weights, drawings, figures or other technical data shall only be binding when the same have been expressly agreed in writing or text form. Tradewell shall retain ownership and copyright of quotations, figures, drawings and other documentation. The Buyer shall not disclose the same to third parties without the express written consent of Tradewell. If no contract arises, such documents individually prepared for prospective buyers shall be returned without the requirement for request thereto and, in all other events, promptly upon request.
3. PRICES AND TERMS OF PAYMENT
All prices are stated in currency due to actual pricelist and are exclusive of delivery, VAT, freight, duty, taxes, customs and other charges. For deliveries within the EU, the buyer must provide his VAT ID number. If no VAT is due on a delivery, the buyer must point this out in good time and provide the necessary evidence. The purchase price shall be payable at latest thirty (30) days after receipt of Tradewell Invoice. If Purchaser fails to pay the outstanding amount within the time for payment, interest shall be payable at a rate of 2 % per commenced month of the due amount until the amount is paid to Tradewell’s bank. In case of Purchaser’s breach of his payment obligations, Tradewell may discontinue the deliveries until payment is made. In this case, Tradewell shall be entitled to have any additional work and any additional expenses paid and covered. In case of Purchaser’s material breach of his payment obligations, Tradewell may also claim immediate payment of any outstanding amount, whether due or not. Purchaser may not make setoffs against issued invoices, unless the counterclaim is acknowledged in writing by Tradewell.
4. RETENTION OF TITLE
Tradewell reserves the right to retain title to the delivered goods until payment in full of the purchase price and the fulfilment of all claims under the existing business relationship with the Buyer. In the case of a current open account with the Buyer, the total retained goods shall serve as security for the payment balance. The retained goods may not be pledged, assigned as collateral or in any other manner encumbered with third-party rights. The Buyer is entitled to resell the goods only within the course of normal business activities and on the condition that it only passes title to its customers when the same have paid the price in full. By entering into this contract with Tradewell, the Buyer, by way of precaution, assigns to Tradewell all of its future purchase price claims against its customers arising from such resale without the requirement for a separate declaration of assignment for individual cases of resale. Tradewell accepts this assignment. In the case of an open account between the Buyer and its customers, the claim assigned by the Buyer in advance shall relate to the recognised balance and, in the event that the customer becomes insolvent, to the available causal account balance. At the same time, the Buyer shall assume the obligation to inform Tradewell upon request of the names of the third-party debtors and the amounts of the assigned receivables and to provide the information required for collecting the receivables. Until Tradewell exercises it’s at any time permissible right to revocation, the Buyer shall be authorized to collect the tacitly assigned receivables. Tradewell may revoke the rights of the Buyer under this Section if the Buyer does not properly fulfil its contractual obligations towards Tradewell, in particular when it is in default of payment.
5. SALES MATERIAL PRODUCT INFORMATION ETC.
Any and all information, drawings and data included in Tradewell’s sales material, pricelists etc. are only indicative and shall not be deemed, neither directly nor indirectly, to contain any guarantees.
6. DELIVERY / PASSING OF RISK
Unless otherwise clearly agreed in writing all deliveries will be made DAP (Incoterms 2010) to the agreed address listed on the written confirmation send by Tradewell to Purchaser. Where delivery cannot be made due to conditions for which Purchaser is responsible, e.g. that Purchaser does not collect the products or is unable to receive the products, the product will be stored by Tradewell at Purchaser’s own expense and risk. Tradewell is entitled to charge storage rent, have its costs paid etc. If it is agreed that the supplied goods are to be despatched to a location stipulated by the Buyer, the risk of accidental loss and accidental deterioration shall pass to the Buyer as soon as the goods are handed over to the person performing transport, at the latest, however, upon leaving the place of storage. If it is agreed that the Buyer will collect the goods, the risk of accidental loss and accidental deterioration shall pass to the Buyer upon the goods being made available for collection by the Buyer and the Buyer being notified thereof (Ex Works as defined in Incoterms 2020). The above shall also apply in the event of part-deliveries. The Buyer or its carrier is responsible for ensuring the orderly loading and securing of the goods. If the Buyer is in default with acceptance or delays performance for any other reasons attributable to the Buyer, the risk shall pass to the Buyer as of the day upon which it was notified of the availability of the goods for collection.
7. DELAY
In Tradewell’s confirmation of Purchaser’s order, Tradewell will estimate the time of dispatch to the best of Tradewell’s judgment. Any postponement of the estimated time of delivery by fifteen (15) working days shall in any event be deemed delivery on time, and Purchaser shall have no remedies for breach towards Tradewell due to the postponement. Where Tradewell exceeds the extended time of dispatch by more than 20 working days, Purchaser shall set a last appropriate despite. If this last despite has fruitlessly passed, Purchaser may terminate the agreement with immediate effect. Where Purchaser chooses to terminate the contract with immediate effect, Purchaser is only entitled to a refund of payments already made in respect of the delayed products, but not to a refund of payments for other products or services. Purchaser shall have no other remedies for breach caused by the delay in question and will accordingly be prevented from making any claim for damages. This shall not apply to claims for damages due to death, physical injury and damage to the health of the Buyer and claims due to delay and for actions of Tradewell resulting out of gross negligence or intent.
8. DEFECTS AND NOTICE OF DEFECTS
Purchaser shall, without undue delay and not later than three (3) working days after receipt of the products, make a proper examination of the products for defects. If no proper examination is made, or if later defects are established which could have/ought to have been established at an earlier time, Tradewell shall not be liable for any defects. Tradewell shall only be liable for original defects. If Purchaser finds that the product is defective, written notice of the defect shall be given to Tradewell immediately after the defect is or ought to have been established; a specification of the defects shall be included. Where a complaint is not made in time, the right to claim non-conformity is forfeited. Tradewell’s liability for defects and non-conformities shall always and in any event be limited, at Tradewell’s option and within a reasonable time, to delivery in replacement, remedy or the granting of a proportionate reduction of the purchase price, such reduction is to be determined by Tradewell. Purchaser shall have no other remedies for breach. This limitation shall not apply in the case of death, physical injury or injury to health and for wilful and gross negligent breach of obligations or if liability can’t be limited or excluded according to the applicable law. Any modifications or changes of the products without Tradewell’s prior approval shall exempt Tradewell from any and all liabilities or obligations.
9. LIMITATION OF LIABILITY
In the case of slight negligence, Tradewell liability, including that of its employees, workers, staff members, representatives, or in general any person employed by Tradewell in performance of its obligations including any other person entrusted with covenants and duties which relate to the business relationship with Purchaser, shall be limited to product-specific foreseeable, typical, direct and immediate losses or damages. Tradewell shall further not be liable for any breach of non-essential obligations under the relevant contract due to slight negligence. Any liability for consequential damages is excluded.
The above shall not impair Tradewell liability under mandatory applicable laws which require Tradewell to accept extended liability or responsibility. Neither shall the above apply for personal injuries or loss of life of Purchaser which are attributable to culpable acts or omissions by Tradewell.
Purchaser’s claims for damages based on the defectiveness of Contractual Goods shall be statute-barred one (1) years after delivery of the concerned Goods. The foregoing shall not apply in case of gross negligence on Tradewell part or in the event of personal injuries or loss of life of Purchaser which are attributable to culpable acts or omissions by Tradewell.
Tradewell shall by no means be liable for materials, component parts, active ingredients, prescriptions, recipes and compounds, representations and warranties, freight specifications or manufacturing instructions provided by or obtained from Purchaser, unless expressly agreed upon otherwise in writing. Tradewell shall not be obliged to examine the foregoing items with regard to their conformity with product liability laws and/or any other mandatory applicable legal provisions. Purchaser shall fully indemnify and otherwise hold Tradewell harmless against any and all claims raised by third parties in this respect against Tradewell, including any losses, claims for injury and damage, costs and expenses or legal fees.
10. PRODUCT LIABILITY
Tradewell incurs product liability pursuant to the product liability laws and/or any other mandatory applicable legal provisions. Tradewell disclaims any other kind of liability for damages or injury caused by a defective product. Purchaser shall, without undue delay, notify Tradewell if a third party asserts a claim for product liability towards Purchaser. If a third party brings an action against Tradewell for product liability, Purchaser accepts to join as a third party to the case or to be sued before the court or arbitration tribunal trying the case. If Tradewell incurs product liability to any third party, Purchaser shall indemnify Tradewell to the same extent as the extent, to which Tradewell’s liability is disclaimed or limited pursuant to these general terms of sale and delivery or the sales contract.
11. FORCE MAJEURE
Tradewell shall not be liable to Purchaser where the following circumstances occur after the signing of the sales contract and prevent or delay the performance of the sales contract: war and mobilization, insurrection and civil commotion, natural disaster, strikes and lockouts, blockades, shortage of goods and defects or delays in deliveries by sub-suppliers, production and delivery difficulties, embargo, fire, shortage of transport, exchange control regulations, import and export restrictions, death, disease or the resignation of key persons, computer viruses or other circumstances beyond the direct control of Tradewell. In this case, Tradewell may postpone delivery, until such circumstance has ceased or, alternatively, cancel the order or rescind the sales contract in whole or in part without incurring liability. If Purchaser is affected by force majeure, Tradewell may distribute the products through a third party for the duration of the barrier.
12. APPLICABLE LAW AND VENUE
The contractual relations between Tradewell and Purchaser, including all past and future legal relationships, shall be governed exclusively by the laws of Germany to the exclusion of all conflict of law alternatives and the terms of the CISG (UN Convention on Contracts for the International Sale of Goods).
The exclusive place of venue for all legal disputes with buyers who have their administrative headquarters or a branch within the European Union, Switzerland or the United Kingdom arising directly or indirectly from contractual relationships shall be Bayreuth, Germany. For Buyers who do not have their administrative headquarters or a branch office within the European Union, Switzerland or the United Kingdom, all disputes arising out of or in connection with the business relationship, including the formation, validity or termination of the contract, shall be finally settled by the International Chamber of Commerce (ICC) to the exclusion of the ordinary courts of law. The arbitral tribunal shall also decide on the validity of this arbitration agreement. The arbitral tribunal shall consist of one arbitrator. The place of arbitration shall be Munich. The language of arbitration shall be German.
The exclusive place of performance for all obligations, covenants and deliveries for both Parties hereto shall be the head office Tradewell, as far as allowed under applicable mandatory statutory laws.
The contractual language is German only. Insofar as translations are available, these are for information purposes only. In the event of discrepancies, the German version shall prevail.
Should any provisions of these General Terms and Conditions of Sale and Delivery and of the further agreements made be or become invalid, this shall not affect the validity of the remaining provisions. In this case the Parties undertake to agree a legally permissible provision which corresponds to or comes closest to the desired commercial effect. This also applies to the filling of omissions.
