General Terms & Conditions
1. Area of Application:
1.1 Goods and services shall only be provided on the basis of our General Terms & Conditions. Any Terms & Conditions of the Purchaser shall only be binding for us if these are acknowledged by us in writing with a signature.
1.2 Conflicting General Terms & Conditions of the Purchaser which we have not acknowledged in writing with a signature shall not be binding, even if we do not expressively object to them.
2. Place of Performance, Jurisdiction, Choice of Law:
2.1 The place of performance shall be Passau. If the Defendant is an entrepreneur, the place of jurisdiction for all disputes arising from the contractual relationship between the parties shall be vested in Landshut.
2.2 All legal relations between us and the Purchaser shall be exclusively governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
3. Contents of the Contract:
3.1 All sales shall be only concluded with specific delivery dates, quantities, articles and qualities.
3.2 We reserve the right to make modifications to our designs as a result of general fashion trends as well as the right to make customary or small modifications which are technically unavoidable to quality, color, width, weight, finish or design, to a reasonable extent.
3.3 Incorrectly noted information shall be corrected electronically with the order confirmation.
4.1 Delivery shall be made ex works. The Purchaser shall bear the shipping costs.
4.2 For deliveries coming from an external storage site, the freight is calculated ex works; instead a customary lump‐sum warehouse surcharge can be charged.
4.3 Packaging shall not be charged for unless the Customer requests special packaging.
4.4 The Seller shall be entitled to make partial deliveries to a reasonable extent, provided partial delivery was not specifically excluded in the order.
4.5 Risk shall pass to the Purchaser upon hand‐over to the person carrying out the delivery or upon the delivery leaving the plant of the Seller regardless of whether or not dispatch is undertaken from the place of performance or who bears the shipping costs. Should the goods be ready for dispatch and the shipment or acceptance is subject to delay for reasons beyond our control, the risk shall pass to the Purchaser upon notification of readiness for dispatch.
4.6 The goods shall not be shipped with insurance. We shall be entitled but not obligated to insure deliveries in the name and on account of the Purchaser.
5. Delivery Interruptions:
5.1 In the case of force majeure and other unforeseeable, exceptional and circumstances for which we are not to blame, e. g. difficulties in procuring materials, operational breakdowns, strikes, lockouts, lack of means of transportation, interventions by public authorities, power supply difficulties etc., even if these occur with the upstream supplier, the delivery period shall be extended to a reasonable extent if we are hindered in the timely performance of our obligations.
5.2 Should delivery or performance become impossible due to the aforementioned circumstances, we shall be released from our obligation to deliver.
5.3 Where the delivery is delayed for more than two months, the Customer shall be entitled to rescind the contract.
5.4 Should the delivery time is extended or we are released from our obligation for delivery, the Customer shall have no right to derive claims for damages from this.
5.5 We shall only be entitled to invoke the aforementioned circumstances, if we inform the Customer without delay upon the occurrence of the hindrance.
6. Extension to Delivery Period:
6.1 Upon expiry of the delivery period, an customary additional period for performance corresponding to the duration of the original delivery period, but however no longer than 12 days, shall commence automatically without further declaration. After expiry of this extended delivery period, the contract shall be deemed to have been rescinded excluding any claims for damages, if the Purchaser does not require the contract to be fulfilled during the extended delivery period or within a further 14 days.
6.2 Forward transactions with the possibility of an extended delivery period shall not be entered into.
6.3 If the Purchaser wishes to claim damages due to non‐fulfillment, he shall to send a demand for performance based on standard commercial practice setting a new deadline including a refusal to accept performance before the extension of delivery period (in accordance with section 6.1 above)or within 14 days of its expiration. If the demand for performance is sent within the 12 day extended period, the extended period shall be extended in excess of the customary 12 days. If the demand for performance is sent after the extension of the 12 days deadline, the Purchaser shall grant us another appropriate extension of the delivery period.
6.4 If we are required to pay damages due to non‐fulfillment, any claim for damages to which the Purchaser is entitled shall be limited to the damage that was foreseeable at the time the contract was concluded, however limited to a maximum of 20% of the value of that part of the delivery, which cannot be used in good time or in accordance to the contract due to the delay or the non‐delivery. This limitation shall not apply in cases where we are subject to mandatory liability due to intent or gross negligence.
7. Notices of Defect:
7.1 Complaints about obvious defects in quality, color, width, weight and design that are not customary or technically avoidable deviations shall be sent to us within two weeks of receipt of the goods at the latest.
7.2 If the delivered quantity of the goods differs from the quantity noted on the shipping documents, excess or short deliveries must be asserted without delay.
7.3 No complaints may be made after handling or alteration has started.
7.4 In the event of justified complaints we shall decide to either rectify the defect or deliver an item free of defects within ten days of receipt of the returned item. If we fail to meet an extended delivery period that has been granted to us for defect rectification, or if it is impossible, we refuse to deliver an item free of defects or it is unsuccessful, the Purchaser shall be entitled to either reduce the purchase price or to rescind the contract.
7.5 Processing fees for return deliveries or any further lump‐sum reductions linked to return deliveries shall not be accepted by us. The statutory regulations in section 439 (2) of the German Civil Code (BGB) shall remain unaffected by this exclusion of lump‐sum processing fees.
8.1 The invoice shall be issued on the date of the delivery, or the date on which the goods are ready, respectively.
8.2 Invoices shall be payable:
- Within 10 days from the date the invoice was issued with a 4% express payment discount
(for German companies).
- Within 15 days from the date the invoice was issued with a 4% express payment discount
(for companies outside of Germany).
- From the 11th to the 30th day from the date the invoice was issued in full without discount.
8.3 If a bill of exchange is accepted by the seller instead of cash, a check or a bank transfer, an additional charge of 1% of the amount of the bill of exchange shall be charged if the bill of exchange is accepted from the 31st day of the invoice date when any early payment discounts have expired. We explicitly reserve the right to refuse to accept bills of exchange. Bills of exchange shall only be accepted on account of payment. All charges for discounts or bills of exchange shall be borne by the Purchaser and are due immediately. Bills of exchange shall be accepted without any warranty or proper presentation or protest.
8.4 Payments made shall always be used to settle the oldest debt plus the default interest accumulated thereon, unless the Purchaser has agreed to an explicit repayment agreement.
8.5 The date of postage shall always be authoritative in determined the settlement date of the payment. In case of bank transfers, the day preceding the day on which the payment is credited to the account of the seller shall be deemed the settlement date of the payment.
9. Payment default by the Customer, lump‐sum damages:
9.1 In the event of a late payment statutory interest shall accrue in accordance with section 288 of the German Civil Code.
9.2 Should the Customer be in default with a payment due or should his financial circumstances change for the worse, we shall be entitled to deliver the goods to the Customer cash on delivery. We shall also be entitled to require for payment in exchange for handing over documents or to make the delivery of the goods subject to the Customer providing a security deposit in the amount of the goods.
9.3 In accordance with section 323 of the German Civil Code we may revoke the contract after the Customer is late with payment, after a reasonable deadline extension and after a declaration refusing to accept performance, we are entitled to claim lump‐sum damages from the Customer. If we are able to exploit the goods during the current fashion season by means of a coverage sale, the amount of the lump‐sum compensation shall be 25 % of the net value of the merchandise. If we cannot make use of the merchandise by means of a coverage sale during the current fashion season, the amount of the lump‐sum damages shall be 50 % of the net value of the goods. The Purchaser is entitled to prove that the damage sustained by us was less than the lump‐sum. We shall be entitled, but however not obligated to hold coverage sales.
10. Offsetting, Right of Retention:
10.1 The right to retain payments shall be excluded, unless we have acknowledged to the right of retention or the claim has been adjudicated and found to exist by res judicata court judgment.
10.2 Claims that have not been explicitly acknowledged by us or that have not been adjudicated and found to exist by res judicata court judgment cannot be offset against our own claims.
11. Sale locations:
The Purchaser undertakes to only selling the goods supplied by us in the sale locations specified in the order. The transfer of our goods to other sales locations of the Purchaser or to a third party shall require our explicit consent.
12. Retention of title:
12.1 We shall retain title to the goods until all receivables, from whatever legal basis have been settled in full, until all checks or bills of exchange provided for payment have been cashed, even if the purchase price has been paid for specifically designated receivables. In case of a current account, the goods subject to retention of title shall be considered security for the outstanding balance. Any handling or processing of the goods subject to retention of title shall be carried out on our account free of charge and without any obligation on our part as we are considered to be the manufacturer in accordance with section 950 of the German Civil Code and therefore we remain the title holder of the goods at any time and at any level of processing. If the goods are processed with other goods which do not belong to us, we shall acquire ownership of the new goods in proportion to the invoice value of the goods subject to retention of title to that of the other processed goods. The same shall apply to new goods resulting from the processing as goods subject to retention of title. It shall be regarded as goods subject to retention of title according to these provisions.
12.2 The Purchaser’s receivables resulting from the resale of the goods subject to retention of title shall be hereby assigned to us in advance as security for all our receivables resulting from the business relationship, regardless of whether the goods subject to retention of title are sold with or without processing or whether they are sold to one or more customers.
12.3 The Purchaser shall only be entitled and authorized to resell the goods subject to retention of title on the basis of a purchase agreement, contract for mixed works and services, contract for labor and materials or similar contract, if the receivables of the resale are assigned to us. The Purchaser shall not be entitled to otherwise dispose of the goods subject to retention of title in any other manner. If requests by us, the Purchaser is obligated to notify the third‐party purchaser that the payment is to assigned to us.
12.4 If the value of the existing securities exceeds our receivables by more than 20%, we are obligated in this respect to release securities at our choice upon the Purchaser’s request or upon the request of a third party affected by the excess security.
13.1 Should any individual provision in these Terms and Conditions or any other provision under other agreements be or become invalid, the remaining provisions and agreements shall remain unaffected hereby.
13.2 If salespeople or commercial agents conclude verbal side agreements that go beyond the written Purchase Agreement, this shall always require confirmation from us which is in writing and signed.
Statement: We hereby declare, that our deliveries correspond to the so‐called „AZO Regulation‟ (European Regulation for the Use of Certain Dangerous Substances and Preparations) according to the letters of commitment of our suppliers.
Last modified: October 5, 2015