General Terms and Conditions of Sale and Delivery
(applicable to companies and traders) of ARIANA Shop
Offers and conclusion of a contract
The offers are subject to change. If the Buyer accepts the Seller’s offer, such acceptance shall apply to all parts of the offer
including these General Terms and Conditions of Sale and Delivery. This shall also apply if the Buyer’s declaration of
acceptance contains terms and conditions deviating from the present General Terms and Conditions of Sale and Delivery, even
if the Seller does not expressly reject the Buyer’s terms and conditions.
Verbal agreements shall only be effective if confirmed by the Seller in writing.
Quality of the goods
All samples, specimens and analytic data are non-binding indications of the average quality of the goods. If certain properties
have been guaranteed, customary deviations shall be admissible.
The Buyer is solely entitled to products of average kind and quality. The quality of the object of sale is to be described in the
written agreement in the contract of sale or on the delivery slip. Quality features of specimens or samples, analytic data or
specifications shall only be considered the object of sale’s quality specs if thus agreed in writing. The Seller does not give any
quality or durability guarantee.
Advertising, pitching or public statements do not constitute a quality guarantee of the object of sale. The user shall test samples
at his own risk within the framework of his production and use them only after the release has been communicated to the Seller.
All modifications to the production process and its basic conditions shall be the user and his specialists’ sole responsibility.
The delivery quantity shall be based solely on the weight and/or volume as determined by the shipping department. The Buyer
is entitled to the Seller’s own products only. The latter, however, at his discretion, may also deliver externally bought goods.
All delivery times shall only be approximate.
Prices (freightage – customs duties – levies)
The prices stated by the Seller exclude VAT, which shall be charged separately at its applicable rate. If the sold goods are
subject to petroleum tax, customs duties, other levies or freightage or if existing petroleum tax, customs duties, other levies or
freightage are raised, the Seller has the right to raise the sales price accordingly when such increases take effect.
Transfer of risk
The risk pertaining to all deliveries shall be transferred upon the hand-over to the Buyer by the forwarder commissioned by the
Delivery and acceptance
If the Buyer does not accept the goods as agreed, the Seller is entitled to deliver the goods, either in part or in full, at his
expense and risk without warning or an extended deadline or to store the goods at his expense and to invoice them as having
been delivered or to withdraw from the contract, either in part or in full, or to claim damages for non-fulfilment. All costs incurred
by a dispartment of the purchased quantity requested by the Buyer, a late acceptance or a late provision of transportation space
shall be borne by the Buyer.
For their duration and in accordance with their impact, war, shutdowns, strikes, lock-outs, shortages of energy and raw
materials, traffic tie-ups, orders of higher authority and force majeure shall exempt the Seller from his delivery obligation. Such
events shall entitle the Seller to withdraw from the contract, either in part or in full, without the Buyer having the right to assert
claims for damages.
Notices of defect
Notices of defect have to be submitted forthwith and in writing. They shall not be admissible when the Seller can no longer
inspect the goods objected to. In the event of a notice of defect, the Buyer has to send to the Seller a sample of the goods
objected to. Sampling has to be done in accordance with the DIN standard applicable to the product in question. Within 14 days,
the Seller has to be given the opportunity to verify that proper sampling has taken place.
The Buyer has to ensure protection in the event of any right of recourse vis-à-vis the forwarder. The Buyer may, in case of an
incorrect or partial delivery or a defect – under exclusion of other warranty claims – at his discretion only demand the Seller’s
supplementary performance, withdrawal or reduction of the price. Additional claims, regardless of their kind, that do not affect
the delivered goods themselves are hereby excluded. Customary or technically unavoidable fluctuations in the goods’ quality or
appearance do not entitle the Buyer to submit a notice of defect.
The Seller shall only be liable for damages – without prejudice to the Buyer’s other claims arising from the same circumstance –
if there is proof of his, his bodies’, vicarious agents’ intent or gross negligence.
His bodies and vicarious agents are also only liable for damages – without prejudice to the Buyer’s other claims arising from the
same circumstance – in case of intent or gross negligence.
The damages to be paid by the Seller, if liable, shall be limited to the typical damage as foreseeable when the contract was
concluded and be no more than three times the value of the delivery. The Buyer’s claims, warranty and claims for damages in
particular, shall become time-barred 1 year after delivery and/or hand-over of the goods to the forwarder commissioned by the
The risk regarding all packaging lent to or leased to the Buyer by the Seller or used for the transportation of the goods is the
Buyer’s, from their dispatch until their arrival at the place of receipt as designated by the Seller. The Buyer is not entitled to
exercise a right of retention regarding the transport packaging for any alleged counterclaims.
Transport packaging sold in conjunction with the goods shall not be taken back by the Seller.
The Seller remains the owner of all returnable containers. They may only be used for transporting the goods delivered therein
by the Seller. Returnable containers shall be returned empty to the Schallstadt plant in an undamaged condition.
If the containers are soiled and/or damaged, the Buyer shall bear the necessary cleaning and/or repair costs. The Seller shall be
entitled to reject the return of damaged returnable containers, demand an equivalent replacement or have them repaired at the
Buyer’s expense. If the returnable containers have not been returned within 3 months after their receipt at the Buyer’s, the
Buyer herewith undertakes from the 3
month to pay the Seller a reasonable fee as determined by the Seller in accordance with
the containers’ type and size. All fees shall be the same per month or part thereof. The Seller may, at his discretion, opt for
compensation for lost value.
Reservation of ownership
Until all the Buyer’s payables vis-à-vis the Seller, regardless of their legal foundation, have been paid in full, all goods delivered
by the Seller shall remain the Seller’s property. This shall also apply if the purchase price is paid for certain deliveries
designated by the Buyer. For open accounts, the reserved property shall serve as the collateral for the Seller’s receivables.
The reserved goods shall be processed for the Seller as the manufacturer in terms of § 950 of the German Civil Code
(Bürgerliches Gesetzbuch; BGB) without any obligations on the part of the Seller arising therefrom. If the goods delivered by the
Seller are mixed, combined or connected with other objects, the Buyer herewith assigns to the Seller his rights of ownership or
co-ownership to the new object or the mixed or combined part thereof.
The Buyer hereby undertakes to keep the reserved goods with due and diligent care free of charge and to label them
accordingly. The Buyer shall be entitled to resell the reserved goods and the objects arising from their processing in the course
of his ordinary business and subject to the said reservation of ownership unless he is in arrears. The receivables arising from
such sale or for any other legal reason – including any open account balance claims – are herewith assigned, including all
collateral rights, to the Seller as collateral for the latter’s receivables. If the reserved goods are resold in the context of a work
and materials contract, the advance assignment shall only apply to double the value of the processed reserved goods, based
upon the prices of the Seller’s last invoice excluding discounts, freightage and packaging and other expenses. The same shall
apply to an advance assignment of the Buyer’s claims vis-à-vis a third party if this, in case of processing, acquires a sole right of
ownership to the new object. The Buyer is authorised to collect the assigned receivables on his own behalf until such
authorisation is revoked. If he is in default of payment or suffers a deterioration of assets, this collection authorisation can be
revoked, in which case the Seller can demand that the Buyer issues individual declarations of assignment, discloses the
garnishees, notifies them of said declarations of assignment and makes available all documents necessary for the collection of
such receivable. Furthermore, the Seller is also entitled to a notice of assignment vis-à-vis the garnishee.
The Buyer shall not be entitled to pledge or assign as security the reserved goods. In the event of a distraint, seizure or other
impairment of the goods, the Buyer has to notify the Seller forthwith.
If the Buyer is in default of payment, he forfeits his right to possession of such reserved goods, the delivery of which the open
invoice and/or breach of contract is based upon. He has to surrender them at the Seller’s request until full payment of the
corresponding purchase price has been made without the Seller having to withdraw from the contract.
If the Buyer is in breach of the aforementioned obligations, the Seller shall be entitled to extend the deadline and after its
fruitless expiration to withdraw from the contract. If the recoverable value of the collateral the Seller is entitled to exceeds the
business relationship’s total receivables by more than 20 per cent and this not only on a temporary basis, the Seller has to effect
Payment / default / set-off
Unless agreed otherwise, payments have to be effected net cash immediately. The day of crediting for bank transfers and the
day of cashing for cheques and B/Es shall be considered to be the day of payment. The day of dispatch of the goods ex place of
shipment is considered to be the invoice date upon which all terms of payment shall be based. The Seller may revoke his terms
of payment at any time by giving appropriate notice. In case of default of payment, the Seller shall be entitled to charge default
interest to the amount of 8 per cent above the base lending rate (§ 288 Para. 2 BGB) excl. VAT.
Any set-off of the Seller’s payment claims against contested or not legally established counterclaims is hereby excluded. In case
of default of payment, the Seller may suspend any further deliveries and, under assertion of possible claims for damages,
withdraw from all contracts without giving any special notice of default. If the Buyer does not pay and/or circumstances come to
light that put the Buyer’s creditworthiness in doubt, all his payables shall become due forthwith.
B/Es and cheques shall only be accepted if specially agreed to and then only to facilitate payment.
Place of jurisdiction
Unless otherwise agreed, for both parties the place of jurisdiction regarding all legal disputes is Freiburg. All contracts shall be
construed in accordance with and be governed by the laws of the Federal Republic of Germany.
All amendments or modifications to these General Terms and Conditions of Sale and Delivery have to be in writing.