§ 1 General, Scope of application
(1) Present General Terms and Conditions apply to all our business relations with our customers (hereinafter: "Buyers"). These General Terms and Conditions only apply if the Buyer is an entrepreneur (§ 14 German Civil Code), a legal person according to public law or a separate estate under public law.
(2) The General Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable property (hereinafter also: "Goods"), irrespective of whether we ourselves manufacture the Goods or purchase them from suppliers (§§ 433, 651 German Civil Code). In their current version, the General Terms and Conditions also apply as a framework agreement for future contracts for the sale and/or delivery of movable property with the same Buyer, without it being necessary to refer to those General Terms and Conditions in each individual case.
(3) Our General Terms and Conditions apply exclusively. Deviating, contradictory or supplementary General Terms and Conditions of the Buyer shall only become an integral part of the Contract if and in as much as we have expressly approved their applicability. This approval requirement shall apply in all cases, for example also if in the knowledge of the General and Conditions of the Buyer, we carry out the delivery to the Buyer, without conditions. (4) Individual agreements established with the Buyer in individual cases (including sub-agreements, additions and alterations) shall under all circumstances prevail over these General Terms and Conditions. For the content of such agreements, a written contract or our written confirmation is decisive.
(5) Legally relevant statements and notices that must be issued to us by the Buyer following establishment of the contract (e.g. setting time limits, notices of defects, declarations of withdrawal or deduction) are only effective if in writing.
(6) References to the applicability of statutory regulations have only explanatory relevance. Even without such explanation, the statutory regulations shall apply in as much as not directly amended or expressly excluded in these General Terms and Conditions of Sale.
§ 2 Establishment of contract
(1) Our offers are non-binding. This also applies if we have supplied the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), any product description or documents – also in electronic form – in respect of which we reserve property rights or copyrights.
(2) The ordering of Goods by the Buyer shall be considered a binding contract offer. In as much as the order results in nothing more, we are entitled to accept this contract offer within 7 days following its receipt by us.
(3) The acceptance can be notified to the Buyer either in writing (e.g. by contract confirmation) or by delivery of the Goods to the Buyer.
§ 3 Period of delivery and delay in delivery
(1) The period of delivery will be individually agreed or specified by us upon acceptance of the order.
(2) In as much as we are unable to comply with binding periods of delivery for reasons not attributable to us (non-availability of the performance), we will immediately duly inform the Buyer and at the same time notify the expected new delivery period. If the performance is still unavailable within the new delivery period, we are entitled to fully or partially withdraw from the contract; any consideration already provided by the Buyer will be immediately reimbursed. In this connection, non-availability of the performance shall in particular relate to non-timely delivery to us by our suppliers, in the event that we have entered into a congruent covering operation. Our statutory rights of withdrawal and termination and the statutory regulations on the winding up of the contract in the event of exclusion of the obligation to perform (e.g. impossibility or unreasonableness of the performance and/or subsequent fulfilment) shall remain unaffected. This shall also be without prejudice to the right of the Buyer to withdrawal or termination, according to §8 of these General Terms and Conditions of Sale.
(3) The start of our delivery delay is determined in accordance with statutory regulations. Under all circumstances, however, a reminder must have been issued by the Buyer. If we are in delay of delivery, the Buyer can demand lump sum compensation for his damages due to delay. The lump sum compensation for each full calendar week of delay will amount to 0.5% of the net price (delivery value) in total not exceeding 5% of the delivery value of the goods delivered subject to delay. We remain entitled to prove that the Buyer has suffered no damages whatsoever or a considerably lower amount in damages than represented by the lump sum specified above.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) The delivery will take place ex-warehouse which shall also be the place of delivery. At the request and at the account of the Buyer, the goods will be sent to another destination (sale by delivery to a place other than the place of performance). In as much as not otherwise agreed, we ourselves are entitled to determine the nature of dispatch (in particular transport operator, transport route, packaging).
(2) The risk of accidental loss and accidental deterioration of the goods shall be transferred to the Buyer at the latest upon delivery. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall be transferred upon delivery of the goods to the transport operator, the carrier or the other specified person or organisation responsible for implementation of the delivery. As soon as acceptance has been agreed, this shall determine the transfer of risk. In all other respects, for an agreed acceptance, the statutory regulations of contract work law shall apply mutatis mutandis. The delivery or acceptance shall still apply if the Buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance, fails to cooperate or refuses our delivery for other reasons put forward by the Buyer, we shall be entitled to demand compensation for all resultant damages including additional expenditure (e.g. storage costs). For such compensation, we shall charge a fixed amount of 100 euro per calendar day, starting with the agreed delivery time or – in the absence of an agreed delivery time – with the notification that the goods are ready for dispatch, without prejudice to proof of higher damages and our statutory claims (in particular compensation for additional expenditure, suitable compensation, termination); the fixed sum can however be credited against further monetary claims. The Buyer remains entitled to demonstrate that we suffered no damages or a considerably lower amount in damages than represented by the fixed sum specified above.
§ 5 Prices and conditions of payment
(1) In as much as not otherwise agreed in individual cases, our prices current at the moment of establishment of the contract shall apply, ex warehouse plus statutory turnover tax.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 subsection 1), the Buyer will bear all transport costs ex warehouse and the costs of any transport insurance required by the Buyer. In as much as in individual cases we do not charge the actually incurred transport costs, a transport cost lump sum (excluding transport insurance) in the amount of 250 euro will be considered as having been agreed. Any duties, charges, taxes and other public payments shall be borne by the Buyer. In accordance with the specifications of the packaging regulations, we will not accept return of transport packaging and all other packaging. Packaging will become the property of the Buyer; excluding pallets.
(3) The purchase price is due and payable according to the payment conditions of the German clothing industry.
(4) Upon expiry of the payment term referred to above, the Buyer will be in default. During the period of default, the purchase price will be subject to interest at the statutory rate for interest on overdue amounts. We reserve the right to demand further damages for delay. In respect of traders, entitlement to the commercial interest of due amounts (§ 353 German Commercial Code) will apply.
(5) The Buyer only acquires set-off or repayment rights in as much as his claim is determined in a legally-binding manner or is undisputed. Defects in the delivery are without prejudice to § 7 subsection 6.
(6) If following establishment of the contract it becomes known that our claim to the purchase price is at risk due to incapacity to pay on the part of the Buyer (e.g. due to an application to open insolvency proceedings), in accordance with statutory regulations on refusal of performance – possibly following the setting of a time limit - we are entitled to withdraw from the contract (§ 321 German Civil Code). For contracts concerning the manufacture of non-fungible goods (unique products), we can immediately declare withdrawal; without prejudice to the statutory rules on the absence of a set time limit.
§ 6 Reservation of ownership
(1) Until full payment of all current and future claims from the purchase contract and any current business relationship (secured claims), we reserve the ownership of the sold goods.
(2) The goods subject to reservation of ownership may neither be pledged to third parties nor transferred in surety prior to full payment of the secured claims. The Buyer must immediately inform us in writing if and in as much as third parties have laid claims to goods belonging to us.
(3) In the event of behaviour on the part of the Buyer contrary to the contract, in particular non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with statutory regulations or/and to demand return of the goods on the basis of the reservation of ownership. Such demand for return of the goods does not automatically represent a statement of withdrawal; rather we are entitled to simply demand return of the goods, and to reserve the right to withdraw. If the Buyer does not pay the due purchase price, we can only impose these rights if in advance we have unsuccessfully offered the Buyer a suitable period for payment, or if such setting of a time limit is not necessary on the basis of statutory regulations.
(4) The Buyer is authorised, in the normal exercising of his business, to sell on and/or to process the goods subject to reservation of ownership. In this case, the following additional stipulations apply.
(a) The claims arising from the resale of the goods or the products against third parties shall here in total or for the amount of any joint ownership shared by us be assigned to us by the Buyer by way of security, in accordance with the previous paragraph. We accept the assignment of said security. The obligations upon the Buyer specified in paragraph 2 also apply in respect of the assigned claims.
(b) Alongside ourselves, the Buyer remains authorised to collect the claim. We undertake not to collect the claim as long as the Buyer complies with his payment obligations towards us, does not default on payment, no application to open insolvency procedures is issued, and no other inability to pay arises. However, if such a circumstance does occur, we can demand that the Buyer notifies us of the assigned claims and the relevant debtors, issues all information necessary for collection, hands over the related documents and notifies the debtors (third parties) of the assignment.
(c) If the achievable value of the securities exceeds our claims by more than 10%, at the request of the Buyer, we will release security at our discretion.
§ 7 Claims of the Buyer based on defects
(1) In as much as not otherwise specified hereinbelow, the rights of the Buyer in the event of product or legal defects (including incorrect and short delivery) are subject to the statutory regulations. The statutory special regulations on end delivery of the goods to a consumer remain at all times unaffected (supplier regress in accordance with §§ 478, 479 German Civil Code).
(2) Our liability for defects is above all based on the agreements reached on the nature of the goods. Agreements on the nature of the goods shall include all product descriptions that are the object of the individual contract; in that respect it makes no difference whether the product description originates from the Buyer, the manufacturer or from us.
(3) In as much as the nature of the goods was not agreed, it must be determined in accordance with statutory regulations whether or not there is a defect (§ 434 section 1 Sentence 2 and 3 German Civil Code). However, for public statements by the manufacturer or other third parties (e.g. advertising statements), we accept no liability.
(4) The claims of the Buyer based on defects assume that he has complied with his duty to examine the goods and to make a complaint in respect of a defect immediately on receipt of those goods (§§ 377, 381 German Commercial Code). If a defect emerges during examination or later, we must immediately be duly notified in writing. The notice shall be considered immediate if issued within two weeks, whereby to ensure compliance with the time limit, the timely sending of the notice is sufficient. Irrespective of the examination obligation and requirement to make a complaint in respect of a defect immediately on receipt of the goods, the Buyer must notify obvious defects (including incorrect and short deliveries) within two weeks following delivery, in writing, whereby here, too, to ensure compliance with the time limit, the timely sending of the notice is sufficient. If the Buyer fails to correctly examine or notify defects, our liability for the non-notified defects is excluded.
(5) If the delivered good is defective, we can initially determine whether we wish to undertake subsequent fulfilment by correcting the defect (subsequent repair) or by supplying a defect-free good (replacement delivery). All without prejudice to our right to refuse the selected type of subsequent fulfilment subject to statutory conditions.
(6) We are entitled to impose as a dependent condition on subsequent fulfilment payment of the due purchase price by the Buyer. The Buyer is however entitled to withhold part of the purchase price, proportionate to the nature of the defect.
(7) The Buyer is required to grant us the time and opportunity necessary for the subsequent fulfilment, in particular to pass on to us the item in question for inspection purposes. In the event of replacement delivery, in accordance with the statutory regulations, the Buyer is required to return the defective good to us.
(8) Any expenditure required for inspection and subsequent fulfilment, in particular transport, toll, labour and material costs, will be borne by us, in the case of actual defects. If however the demand of the Buyer to repair a defect proves unjustified, we can demand reimbursement by the Buyer of any resultant costs.
(9) If subsequent fulfilment fails or any due period provided by the Buyer for subsequent fulfilment expires without success, or is not required in accordance with statutory regulations, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, in the event of irrelevant defects, there is no right to withdraw.
(10) Claims from the Buyer for compensation or return of futile expenditure exist only to the extent outlined in §8, and are otherwise excluded.
§ 8 Other liability
(1) In as much as not otherwise arising from these General Terms and Conditions of Sale including the following stipulations, in the event of violation of contractual and extracontractual obligations, we are liable in accordance with the relevant statutory regulations.
(2) We are liable for compensation – on whatever legal grounds – in the event of deliberate action and gross negligence. In the event of simple negligence we are only liable for:
a) damages arising from injury to life, person or health
b) damages arising from violation of an essential contractual obligation (obligations, the fulfilment of which makes correct implementation of the contract at all possible, and compliance with which the contract partner regularly relies upon and should be able to rely upon); in this case, our liability is however restricted to compensation for foreseeable, typically occurring damages.
(3) The liability limitations arising from paragraph 2 do not apply in as much as we have maliciously concealed a defect, or have accepted a guarantee for the nature of the goods. The same applies for claims from the Buyer in accordance with product liability legislation.
(4) On the basis of violation of an obligation not consisting of a defect, the Buyer is only entitled to withdraw or terminate the contract if the violation of the obligation is attributable to us. The free right of the Buyer to terminate the contract (in particular in accordance with §§651, 649 German Civil Code) is excluded. In all other cases, the statutory conditions and legal consequences apply.
§ 9 Limitation
(1) Contrary to §438 section 1 no. 3 German Civil Code, the general limitation period for claims from goods and legal defects is one year following delivery. In as much as acceptance has been agreed, the limitation period shall start upon acceptance.
(2) The limitation period on purchase rights referred to above also applies to contractual and extracontractual compensation claims by the Buyer, based on a defect in the goods, unless application of regular statutory limitation (§§195, 199 German Civil Code) would in an individual case result in a shorter period of limitation. The limitation period of product liability law remains under all circumstances unaffected. For all other compensation claims by the Buyer in accordance with §8, only the statutory limitation periods apply.
§ 10 Choice of law and competent court
(1) These General Terms and Conditions of Sale and all legal relationships between us and the Buyer are subject to the law of the Federal Republic of Germany to the exclusion of all international and supranational (treaty) legal systems, in particular the UN Sales Convention. Nonetheless, preconditions and effects of reservation of ownership in accordance with §6 are subject to the law of the storage location of the good, in as much as according to that law, the choice of law made is not permissible or ineffective in favour of German law.
(2) If the Buyer is a trader as intended in the German Commercial Code, a legal person according to public law, or a separate estate under public law, the exclusive – also international – court for all disputes arising indirectly or directly from the contractual relationship will be our place of business in Pforzheim. We are however also entitled to institute legal proceedings in the place of jurisdiction of the Buyer.