Terms and Conditions of Business (T&Cs)
All business relations, deliveries to be executed, works, and services are subject to these Terms and Conditions of Business. Conflicting or divergent terms and conditions shall not be recognized by us unless we have explicitly consented to such conditions in writing. Transfers of the contractual partner’s rights and obligations pursuant to the contract concluded with us shall only be valid subject to our written approval.
Our Terms and Conditions of Business shall equally apply if we unreservedly perform delivery to the buyer with the knowledge that the buyer’s terms and conditions conflict with or diverge from our Terms and Conditions of Business.
Our Terms and Conditions of Business shall also apply to all future business dealings with the buyer.
2. Offers, Orders, and Contract Conclusion
2.1 Our offers are made exclusively in writing. They are nonbinding. A contractual commitment shall only be made when we submit a written order confirmation (including by e-mail). Further, all agreements, amendments, supplements, and telephone-based or oral collateral agreements which would commit us shall only be valid subject to a written order confirmation from us.
2.2 We reserve all proprietary rights, copyrights, and rights of use to all the offers, depictions (designs, layouts), samples, documents, and data storage media to which the buyer is afforded access. These are to be handled in the strictest confidence and may not be duplicated, published, or made accessible to third parties in any other way without our explicit written approval. The depictions (designs, layouts), samples, documents, and data storage media are to be surrendered to us without undue delay at our request.
All prices are given in euros and are subject to the value added tax which is applicable domestically. This is not included in our prices and is listed separately in an invoice at the statutory rate applicable on the day of invoicing.
The prices are based on current commodity prices and foreign exchange rates. We reserve the right to make price corrections in the event of extraordinary fluctuations.
4. Payment Terms
4.1 The invoice shall be issued on the day of delivery/on the day on which the goods are provided.
4.2 Payments shall be made in full within 14 days of the invoice date. An advance payment shall generally fall due upon an offer being approved. The amount of this payment shall depend on the order volume and shall be at least 30% of the net sum.
Early payment discounts shall not apply. The relevant statutory provisions shall apply in the event of and regarding the consequences of payment in arrears.
4.3 Payments shall always serve to settle the longest overdue debt plus the accrued interest on arrears. The postmark date is always authoritative as the day on which a payment was cleared. In the case of bank transfers, the day prior to the credit appearing in the vendor’s bank account shall be considered the day on which the payment was cleared.
4.4 If the buyer falls into arrears, we shall be entitled to demand interest on arrears in the amount of 8% above the basic rate of interest of the Deutsche Bundesbank p.a. We reserve the right to assert further claims for damages.
4.5 We reserve the right to exercise our right of retention regarding our delivery obligations pursuant to other current contracts until such time as payment has been made in full of the invoice amounts due including interest on arrears. We reserve the right to assert default damage claims.
4.6 Notwithstanding our other rights, if the buyer is in arrears with a payment which is due or if its financial circumstances deteriorate significantly, we shall be authorized to demand collateral or payment in advance for all outstanding deliveries and to accelerate the payment of all claims relating to the business relations.
4.7 Only undisputed or legally effective claims shall entitle the buyer to set off or retention.
4.8 In the event of undisputed defect-related reworking claims, the buyer shall be entitled to a right of retention regarding the compensation due only insofar as the sum withheld is commensurate with the defects and the likely costs of subsequent performance. Notwithstanding existing reworking claims, a right of retention is excluded in the case of immaterial defects.
5.1 The goods shall be delivered from the respective distribution warehouse. If the shipping of goods is contractually agreed with the buyer, we shall determine at our own discretion the shipping form and route as well as the company commissioned with shipping insofar as the buyer does not give any explicit instructions. The shipping costs and any additional expenses incurred subject to an instruction, for example for airfreight, shall be borne by the buyer; we shall charge these to the buyer at cost price. Packaging costs shall be borne by us. Only the costs incurred for special packaging shall be borne by the buyer.
The buyer is obligated to dispose of packaging at its own expense.
5.2 Transport insurance shall not be taken out. If the goods are shipped by a company stipulated by the buyer, the risk shall be transferred to the buyer upon the goods being handed over to the forwarder. The buyer shall see to it itself that the goods are insured irrespective of who bears the transport costs. A shipping notice can be arranged.
5.3 If shipping is delayed due to circumstances for which the buyer is responsible, the risk shall be transferred to the buyer on the day on which the goods are ready to be shipped.
5.4 In the event of delivery ex out-of-town warehouse, a flat-rate warehouse surcharge may be charged.
5.5 We are authorized to make part deliveries if
delivery of the remaining ordered goods is guaranteed,
part delivery is applicable for the buyer in the context of the contractual intended purpose, or
we bear the additional delivery costs incurred.
5.6 Our observing our delivery obligations is subject to the customer fulfilling their obligation in a timely and proper manner.
5.7 Excess deliveries of up to 10% of all the items shall be deemed recognized upon order placement. The quantities and weights determined by us shall be authoritative for calculations.
6. Delivery Time
6.1 Dates and deadlines are agreed as per the order confirmation. If amendments are subsequently agreed, said dates and deadlines shall be extended accordingly by an appropriate length of time.
6.2 One to two prototypes, one size set in a maximum of four sizes, one pre-production sample, and one production sample shall be made available to the buyer during the development/production process, depending on the agreement reached. Upon receiving a sample, the buyer has one week within which to comment on it. Should comments result in significant modifications, this shall result in modification of the timeline and possibly also the price. If samples are not commented on within the agreed time (one week), this shall delay the delivery date proportionally and may result in the loss of the scheduled production slot. The delivery date calculated on this basis and any impact this has on the price and delivery costs (possibly airfreight) are to be accepted by the buyer.
6.3 We shall not be liable for delivery impossibility or delayed delivery insofar as these are due to force majeure, a pandemic, or any other event which was unforeseeable at the time of conclusion of the contract and for which we are not responsible (e.g. operational interruptions of any kind, material or energy procurement difficulties, transport delays or disruptions, strikes, lawful lockouts, lack of manpower, energy, or raw materials, difficulties in procuring the necessary official permits, official measures, natural disasters, war, fire, other instances of force majeure, or a supplier’s failure to deliver, incorrect delivery, or delivery which is not on time). These release us from our duty to perform the contract for the duration of their impacts.
Insofar as such events significantly impede delivery or performance or make them impossible and the hindrance is not only temporary (i.e. more than four weeks), we are entitled to withdraw from the contract. In the case of temporary hindrances, the delivery periods shall be extended or the delivery dates shall be pushed back by the duration of the hindrance plus an appropriate lead time.
Insofar as the buyer cannot reasonably be expected to accept delivery or performance due to a delay, they may withdraw from the contract subject to a written declaration being submitted to us without undue delay.
7.1 The buyer is obligated to report in writing evident defects without undue delay and by no later than within three days of receipt of the goods. If the buyer fails to report such defects, the goods shall be deemed accepted. Hidden defects which only later become apparent are to be reported in writing without undue delay and by no later than within five days of being ascertained.
7.2 No objection may be made regarding customary, minor, or technically unavoidable deviations in the quality, size, width, weight color, equipment, customization, or design. There shall equally be no claims for defects in the case of only an insignificant, minor deviation from the agreed nature (including customization) or in the case of only an insignificant usability impairment.
7.3 In the event of a goods defect for which we are responsible, we are initially only entitled to the subsequent performance, reworking, or replacement delivery of faultless substitute goods at our own discretion within 14 weeks of the goods being returned. If we are unwilling or unable to provide subsequent performance or replacement delivery, the buyer is, at their own discretion, entitled to withdraw from the contract or demand that the purchase price be lowered accordingly (price reduction).
7.4 If we are culpable for a defect, the buyer may demand compensation subject to the specific conditions stipulated in Section 8 of these Terms and Conditions of Business. The warranty shall no longer apply if the buyer modifies or processes the delivered goods or has them modified or processed by a third party without our approval and this makes the rectification of defects impossible or unreasonably difficult for us. The additional expenses incurred for the rectification of defects then required shall be borne by the buyer in all instances.
7.5 The expenses incurred for the purposes of subsequent performance shall be borne by the buyer insofar as they are increased due to the necessity of delivery to a place other than the purchaser’s branch office. The application of Section 478 of the German Civil Code (BGB) (Recourse of the entrepreneur) shall remain unaffected. Notwithstanding further claims on our part, in the event of an unjustified notice of defects, the buyer shall reimburse us for the expenses incurred for the examination and – if demanded – rectification of a defect.
8. Liability and Compensation in the Event of Culpability
8.1 Insofar as there is a question of culpability in each case, our liability for compensation is limited in accordance with this, Section 8, irrespective of the legal basis, in particular the impossibility of, delay in, faulty or incorrect delivery, breach of contract, breach of duties regarding contractual negotiations, and tortious acts:
8.2 In the case ordinary negligence on the part of our entities, legal representatives, employees, or any other vicarious agents, we shall not be liable for the resultant damages insofar as this does not concern the violation of essential contractual obligations. The obligations regarded as being essential to the contract are the obligation to make punctual and defect-free delivery and the advisory, protective, and care duties which aim to allow the buyer to use the delivered goods in accordance with the contract or which serve to protect life and limb of the purchaser’s or third-party staff or the client’s property from considerable damage.
8.3 Insofar as we are liable for compensation pursuant to 8.2 above, this liability shall be limited to damage which we could foresee as a possible consequence of a breach of contract upon concluding the contract or which we ought to have foreseen had due diligence been exercised. Indirect damage and consequential damage which are the result of defects in the delivered goods shall only be eligible for compensation insofar as such damage may typically be expected if the goods are used as intended.
8.4 The limitations of this, Section 8, shall not apply to our liability for willful or grossly negligent conduct, for guaranteed characteristics, due to injury to life, limb, or health, or pursuant to Germany’s Product Liability Act (ProdHaftG).
9. Warranty Periods
9.1 With the exception of claims for compensation within the meaning of Section 8, the statutory warranty period shall be limited to one year for new goods and shall be wholly excluded for used goods.
10. Retention of Title
10.1 We shall retain unlimited material and intellectual title to the goods delivered until such time as all the claims in existence upon this contract being concluded have been satisfied, including all claims pertaining to follow-up orders and repeat orders. In the event of conduct on the part of the buyer which is in violation of the contract, in particular payment in arrears, we are entitled to reclaim the goods. Our reclaiming goods shall not constitute a withdrawal from the contract unless this is explicitly declared by us. We are entitled to utilize any goods reclaimed, with the utilization proceeds being offset against the purchaser’s accounts payable less appropriate utilization costs. Goods shall be returned at the purchaser’s expense and own risk.
10.2 Goods may not be resold, let, gifted, pledged, or assigned as security prior to full payment of the purchase price. The buyer shall notify us without undue delay of attachment, theft, or any other impairment of our rights; the buyer must, upon request, take all the necessary steps to prevent these. The buyer is obligated to keep the goods subject to retention of title in good condition and to store them with due diligence. Until further notice, the buyer is entitled to collect the purchase price claims resulting from reselling. The names of the third-party purchasers are to be disclosed to us upon request. We are entitled anytime to collect the transferred purchase price claims ourselves. The buyer shall pay for all culpable impairments of our property which is subject to retention of title.
10.3 We undertake to release the securities due to us at the purchaser’s request insofar as the realized value of our securities exceeds the claims to be secured by more than 20%; we shall be entitled to choose which securities to release.
11. Model Modification, Production Sample
11.1 We reserve the right to make model modifications in the interests of style or technical development.
11.2 The buyer shall usually receive a production sample. We advise you at this point that modifications once the production sample has been received are possible only to a limited degree. Requested modifications are only possible subject to production technology feasibility; any greater costs incurred shall be charged to the buyer. The delivery period or delivery date shall be extended by a period of time which is appropriate to the extent of the modification (see also 6.2).
12. Sample Production, Setup Costs
12.1 If a pre-production sample is requested, all the necessary setup costs (tools, films, sample meterage and sample fee, etc.) and transport costs are to be paid by the buyer in advance and immediately upon being invoiced.
12.2 All setups and production documents such as tools, fabric rollers, films, data storage media, etc. are and shall remain our property, even if the setup costs are listed separately. The buyer shall have no claim to their surrender.
13. Brand Usage
13.1 We are entitled to publish the customer’s trademark and company name as well as the ordered product and details of the order for advertising purposes and/or for press releases and to use these in our catalogs or on the website.
14. Place of Jurisdiction, Place of Performance
14.1 Insofar as the buyer is a merchant, our place of business shall be the place of jurisdiction; we reserve the right to bring an action against the buyer at another legal place of jurisdiction. Insofar as the order confirmation does not indicate otherwise, our place of business shall be the place of performance.
15. Data Storage
16. Final Provisions
16.1 The provisions of the Federal Republic of Germany shall additionally apply. German law shall equally apply without restriction to deliveries made to buyers abroad. The United Nations Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980, is excluded.
16.2 If individual provisions of these Terms and Conditions of Business are invalid, this shall not affect the validity of the remaining provisions. It is agreed that an invalid provision shall be replaced by a valid provision which most closely approximates its commercial purpose.
(T&Cs correct as at August 2020)