General Terms and Conditions of Sale and Delivery
1. OFFER AND CONCLUSION OF THE CONTRACT
All offers, sales and deliveries shall exclusively be subject to our "General Terms and Conditions of Sale and Delivery" as amended from time to time, plus the notes on the order confirmations. The offers of the seller shall always be subject to change and apply exclusively to the scope stated. Contracts shall only be concluded upon written confirmation of the order. The same shall apply to other contracts, including those made at a later date. Verbal subsidiary contracts or assurances as well as contracts with our field staff shall be confirmed by us in writing. If the buyer supplies drawings or quality samples, he shall be liable to the seller for ensuring that no third-party rights are infringed by their use. The seller shall not be liable for drawings or samples supplied by the buyer. Samples supplied by the seller shall be deemed to be indicative only. When placing an order or accepting deliveries, the buyer shall accept our General Terms and Conditions of Sale and Delivery not only for this transaction but also for all subsequent transactions. The seller shall have the right to withdraw from the contract, if there are insurmountable difficulties for its fulfilment or if the order value is not in economic proportion. In addition, the seller shall have the right to withdraw, if the creditworthiness of the customer appears doubtful. In the case of new contracts, the seller shall reserve the right to delivery by payment in advance. For order values of 100,000€ or more, the seller may request advance payments of at least 15% of the order value. The full amount of the advance payment made shall be deducted from the final invoice.
Services shall be individually tailored to your company. Service costs shall be communicated in the form of an offer. Acceptance of the offer by the buyer shall replace a separate order confirmation. Service invoices shall be payable immediately net cash.
Unless otherwise expressly confirmed, prices shall not include value added tax. If applicable, this tax shall be charged at the statutory rate applicable at the time of performance of the services. The buyer shall bear any customs duties, taxes and levies incurred outside Germany. Prices in currencies other than that the one used in Germany shall be based on the average exchange rate of the EURO to the relevant foreign currency officially quoted by the Frankfurt Stock Exchange on the date of the seller's last offer. Should this rate change in the period from the date of the offer until receipt of payment by the seller, the price shall also change accordingly. In the absence of an offer by the seller, the exchange rate shall be determined by the date of the seller's order confirmation. The agreed prices shall be based on the current costs of raw materials and supplies, collectively agreed wages and freight, exchange rates and customs duties in Germany, and shall be exclusive of loading and packaging costs, unless otherwise agreed in writing. If these costs change, the seller may reserve the right to re-determine the prices within the scope of the cost increases that have occurred, whereby the principles of equitable discretion must be observed. Additional costs arising from subsequent changes to the order for which the seller is not responsible shall be borne by the buyer.
4. SCOPE OF DELIVERY
The delivery period shall commence on the date of clarification of all technical and other details of the order. If the buyer does not fulfil his contractual obligations, the seller shall not be bound to observe the agreed deadlines. In the case of contracts for the delivery of an as yet undetermined quantity within a certain period of time, an agreement on the quantity and delivery time shall be reserved for each call-off. Partial deliveries may be made and shall be invoiced individually. Each partial delivery shall be regarded as a separate transaction. The delivery period shall be deemed to have been observed, if the goods have left the supplying plant by the expiry of the period or are ready for delivery at the supplying plant, if dispatch is prevented through no fault of the seller. The seller may postpone the delivery or cancel it in whole or in part, if performance of the operation or the dispatch is hindered or made impossible by reasons which the seller cannot avert even with reasonable care; e.g. by strike, lockout, hindrance of dispatch in the seller's own business or hindrance of dispatch of the seller's supplier, breakage, shortage of raw materials, auxiliary materials or other interventions of force majeure of any kind. If the seller is in default with the delivery due to his personal fault, the buyer may set a reasonable extension period and withdraw from the contract after expiry of this period, insofar as the contract has not yet been fulfilled. If the seller does not comply with this extension period, the buyer has the right to withdraw from the contract. Items requiring cutting, embroidery, printing or the like, and whose processing has already begun, shall be excluded from the cancellation. The buyer may not assert any claims for damages against the seller as a result of the delay in delivery or cancellation of the order.
Return shipments of as-new, unfinished goods shall be possible within 10 days. The goods and their original packaging must not show any damage, stains or signs of wear. Shirts and blouses individually packed at the factory cannot be returned after unpacking. Customer-finished and specially manufactured goods will not be taken back as a matter of principle, unless the goods have a hidden defect which could not be detected before finishing/manufacturing. A completed goods accompanying document must be enclosed with the returned goods. Returns without this goods accompanying document cannot be processed. Goods accompanying documents can be printed out at www.winwear.com. If goods from several deliveries are returned together, the goods must be divided within the consignment in such a way that a clear allocation to the respective original delivery is possible. Returns must be made free of charge. If there is no delivery error, you will receive a credit note for the sales value of the goods minus 5% handling costs after processing the return, but at least minus 8.00 EUR per original delivery. Shipping costs shall not be credited in such a case. If, in agreed exceptional cases, we take back unpacked goods, the handling costs for these items shall amount to 20% of the sales value of the goods. Exceptions shall only be valid with the seller’s written consent.
If goods are inspected by the buyer before dispatch, they shall be deemed to have been delivered in accordance with the agreed conditions. If goods ready for delivery are stored at the buyer's disposal for reasons that the buyer is responsible for, the invoice may be issued immediately and payment requested. The goods shall then be stored for the account and at the risk of the buyer. This shall not affect the seller's right to request acceptance.
Shipment shall be at the risk of the buyer, even in the case of freight-paid delivery. Transport and other insurances shall only be taken out on request and shall be at the expense of the buyer. If shipment cannot be effected under the agreed conditions, it shall be effected under the best possible conditions at the seller's discretion. Costs for auxiliary cover or packaging used shall be borne by the buyer.
8. PRICES, CALCULATION AND PAYMENT
The prices stated in the price list or in the offer shall apply, plus the applicable VAT. Freight charges shall be invoiced separately. For cash on delivery shipments, the incurred shipping and any handling costs shall be invoiced. For deliveries abroad, we shall deliver ex works. All customs clearance and freight costs incurred shall be borne by the buyer and shall be invoiced separately according to expenditure. Unless otherwise agreed, invoices shall be payable within 10 days with 2% discount or after 30 days net cash. If the agreed due dates are exceeded, interest on arrears of 8.12% above the discount rate shall be charged for commercial transactions, as well as a flat-rate arrears fee of €40. In the event of cessation of payments by the buyer, we shall have the rights listed in Section 46 of the German Bankruptcy Code (Deutsche Konkursordnung) to sort out the goods. In addition, all outstanding payments shall become due immediately. All expenses in the case of non-cash payments shall be borne by the ordering party. Non-cash payments shall be accepted with reservation. The seller shall not be obliged to accept bills of exchange. In the event of acceptance, fees shall be borne by the buyer. Payment shall only be deemed to have been made if, in the case of bills of exchange, the bill has been honoured or the buyer's bank has actually paid the cheque / or if a value date can be identified. Offsetting by the buyer shall only be permissible with a counterclaim of the buyer that has been legally established or is undisputed by the seller. Only counterclaims recognised in writing by the seller, including those arising from notices of defects, shall entitle the buyer to withhold payments due. In the event that justified doubts arise as to the solvency of the buyer, the seller may make further deliveries dependent on securities.
9. RESERVATION OF TITLE
The seller shall retain title to the delivered goods until all his claims resulting from the delivery contract or from previous contracts between the parties have been settled. The buyer shall not be entitled to pledge the goods subject to retention of title or to assign them as security. The seller must be informed immediately of any seizure by other creditors. As long as the buyer is not in default of payment, he shall be entitled to process and resell the goods in the ordinary course of business. The retention of title shall also extend to the new items created by processing. In the event of combination or mixing with items not belonging to the seller, the latter shall acquire co-ownership. The buyer hereby assigns to the seller any claims arising from the resale, irrespective of whether the goods subject to retention of title are resold without or after processing, or whether they are resold to one or more buyers. The assigned claims shall serve as security for the seller in the amount of the value of the respective reserved goods sold. In the event that the reserved goods are sold by the buyer together with other goods not belonging to the seller, whether without or after processing, the assignment of the purchase price claim shall only apply to the amount of the value of the reserved goods. The buyer undertakes to inform the seller of the names of the third-party debtors and the amounts of the claims upon request. In the event of default of payment by the buyer, the seller shall be entitled to inform the third-party debtor of the assignment and to assert the assigned claim. In the event that his purchase price claims are endangered, the seller shall be entitled to immediately take back the goods subject to retention of title. At the buyer's request, the seller shall be obliged to release parts of the securities of his choice, if the value of the securities existing for the seller exceeds his claims by more than 20%. Any costs of interventions shall be borne by the buyer.
Immediately after receipt of the delivery, the purchaser shall inspect the consignment for completeness and correctness of the goods and, in the event of a defect, notify us in writing immediately after its discovery. If the buyer fails to give notice of defects, the delivery shall be deemed to have been accepted. Characteristics of the goods which are inspected by the purchaser or a third party commissioned by the purchaser prior to shipment and which are not objected to may not be complained about later. After resale, processing or use of the goods, defects which can be detected immediately after receipt of the goods can no longer be complained about. Claims arising from any defects in the delivery can only relate to the individual defective parts. In this respect, the deliveries shall be deemed to be divisible performances. In the event of defects for which the seller is demonstrably responsible, the seller shall, at his discretion, either deliver goods free of defects ex works within a reasonable period of time and without charge or, after return delivery carriage paid and without charge, remedy the defects within the scope of the contractual obligations assumed; the principles of equitable discretion must be observed. If goods delivered or processed by the seller are defective or lack warranted qualities, the seller shall restore the goods to their contractual condition. The seller shall be granted a reasonable period of grace for this purpose. Instead of rectifying the defect, the seller shall be entitled to replace the reduced value or to deliver new goods. If this is not possible, the buyer may, at his discretion, demand cancellation of the contract or reduction of the remuneration. Further claims shall be excluded. The seller's warranty obligation shall not apply, if the buyer has not fulfilled his essential contractual obligations, in particular his obligations to notify defects and to pay. If a repair is carried out under the warranty obligation, the warranty period shall be suspended with regard to the affected part for the duration of the repair work. In all other respects, the above conditions shall also apply to such rectifications. Customary or minor, technically unavoidable deviations in quality, colour, width, weight of the equipment or design cannot be objected to. We shall not be liable for losses, damage, costs or subsequent damages of any kind arising in connection with the use of our goods. In the event of justified complaints, the seller shall have the right to rectify the defect or to deliver defect-free replacement goods within a period to be agreed in writing. In the event of disputes regarding the warranty of certain properties of the goods, a neutral expert appointed by the seller shall decide exclusively. If necessary, random samples shall be taken together, if possible. The costs of the examination or appraisal shall be borne by the losing party.
11. SCOPE OF LIABILITY
All other claims of the buyer exceeding the claims agreed in these Terms and Conditions of Sale, in particular for compensation for damages of any kind, whether under warranty or on any other legal grounds - including non-contractual liability - shall be excluded. The above limitation of liability shall not apply in the event of intent or gross negligence on the part of the seller or his executives and vicarious agents or in the event of non-compliance with warranted characteristics, insofar as the warranty was intended to protect the buyer against damage of the type that has occurred. The liability existing hereunder shall be limited to the compensation of typical and foreseeable damage. All claims of the buyer against the seller shall become statute-barred at the latest 12 weeks after receipt of the goods by the buyer, unless shorter limitation periods are provided for in the contract.
12. PLACE OF PERFORMANCE AND JURISDICTION
The place of performance and jurisdiction for all deliveries and services for both parties shall be the competent court of the seller. In the case of foreign transactions, the laws of the Federal Republic of Germany shall apply to the entire contractual relationship. The seller shall also be entitled to bring an action against the buyer before the court having jurisdiction for the buyer's place of business. In the case of foreign orders, application of the United Nations Convention on Contracts for the International Sale of Goods shall be expressly excluded. The German version of these terms and conditions shall be legally binding. In addition to these Terms and Conditions of Sale, the laws of the Federal Republic of Germany shall apply; the provisions of the German Civil Code (BGB), the German Commercial Code (HGB) and the German Code of Civil Procedure (ZPO) shall take precedence over other German legal provisions. The German version shall be authoritative for the interpretation of these Terms and Conditions of Sale. Any provisions deviating from these Terms and Conditions of Sale, in particular any terms and conditions of the buyer, shall only become effective upon the seller's specific written confirmation. The mere acceptance of an order by the seller shall in no case imply an acknowledgement of the buyer's terms and conditions. At the latest when the goods pass into the possession of the buyer or the buyer makes use of the seller's services, these terms and conditions of sale shall be deemed to have been accepted by the buyer, even without the buyer’s express confirmation. In accordance with Sections 23, 24, 26 and 43 of the Federal Data Protection Act (BDSG), we would like to point out that we store individual data on the customer within the scope of the purpose of order processing, which we shall not pass on to third parties unless this is permitted or prescribed by BDSG or other legal provisions.
13. TRADEMARKS AND MISCELLANEOUS
A large part of our items are our own developments and our intellectual property, imitations shall be illegal. Passing on to third parties without our consent shall be prohibited. We reserve the right to take legal action in the event of infringements. All previously agreed terms and conditions of sale, delivery and payment shall hereby become void. We reserve the right to change prices during the term of the contract. Typing errors cannot be excluded for item numbers and prices. If any provision of these terms and conditions becomes invalid, the entirety of these terms and conditions shall not be affected thereby.
IP Textilien GmbH - Brilon, on 30.12.2019