§ 1 Place of Performance
Place of performance for all services to be rendered resulting from the order contract is Ochtrup.
§ 2 Jurisdiction
Place of jurisdiction (including claims arising out of bills of exchange or cheques) shall be Steinfurt, if this is applicable by law, or the relevant courts in the location of the seller' s principal place of business. This is particularly valid for legal claims for overdue payments. The court first invoked shall be competent.
§ 3 Conclusion of Contracts
All sales shall be made on the basis of precisely defined delivery dates, quantities, Items of goods and specifications. Both parties shall be bound thereto. However, block orders shall be permitted and may be regulated in an implementation clause. Changes in any placed order shall only be permitted with the approval of both parties. Details may be regulated in an implementation clause. Moreover, no order shall be cancelled unless notice of cancellation is given in writing within 6 weeks of placing the order.
§ 4 Delivery
1. Deliveries shall be made ex works without insurance and according to the incoterms. The transport risk and costs are carried by the purchaser. Unless the customer expressly wishes to makeother arrangements, we shall hire the forwarding company and shall charge for any costs in curred.
2. In case delivery is made from an outside warehouse, carriage shall be charged ex works; alternatively, a fixed warehouse premium may be charged.
3. Buyers, whose place of business is in the seller's town shall pay no transport costs.
4. Packaging shall only be charged if delivery is made in crates or if the buyer requires special packaging. In case the crates are sent back carriage free and in useable condition within two months, the amount charged for them shall be credited to the buyer's account. In case leased containers are being used, the buyer shall bear the forwarding costs and the seller the lease charges.
5. Unsorted partial deliveries shall only be permitted with the buyer's approval.
6. If delivery is not taken in due time through the fault of the buyer, the seller shall be entitled, at his discretion, to either invoice the payments in arrears or to withdraw from the agreement or to claim for damages after granting a grace period of 12 days.
§ 5 Interruption of Delivery
1. In case of force majeure, strike or lockout, measures taken by public authorities or other interruptions of operations through no fault of either party and which last or are anticipated to last more than 1 week, the term of delivery and/or period for taking delivery shall be extended by the period of interruption, however, by no more than 5 weeks plus grace period. This extension shall not be granted unless the other party is notified immediately of the reason for the interruption as soon as the impossibility of complying with the above delivery terms and periods can be foreseen.
2. In case delivery is not made and/or taken in due time, the other party may withdraw from the agreement subject to 2 weeks notice being given per registered mail.
3. Should the interruption have lasted for more than 5 weeks and should the other party not be immediately informed upon request that deliveries can be made and/or taken in due time, the other party shall be entitled to withdraw from the agreement forthwith.
4. Any claims for damages shall be excluded, if the relevant party has met its obligationsunder Items 1-3.
§ 6 Grace Period
1. After expiry of the term of delivery, an automatic grace period equivalent to the delivery term and a maximum duration of 18 days shall commence. Withdrawal from the agreement to the exclusion of any claims for damages shall be deemed having occurred upon expiry of the grace period. No withdrawal from the agreement under Item 1 sentence 2 shall take place, if the pur chaser informs the seller during the grace period that he insists on the performance of the agreement. However, the seller shall be released from his duty to deliver, if the buyer fails to respond to the inquiry of the seller during the grace period whether he shall insist on per formance of the agreement. "Fix" agreement are not valid.
2. Should the buyer want to claim for damages instead of insisting on performance, he shall grant the seller a 4 week period under threat of refusing to accept performance after expiry of such period. This period shall commence from the day the buyer's notification thereof is sent by registered mail. This provision shall only apply instead of the withdrawal under Item 1 sentence 2, if the seller receives this notification within the grace period.
3. The grace period for stock items and NOS ("never out of stock") items shall not exceed 5 days. The provisions of Items 1 and 2 shall apply in all other respects.
4. Any claims of the buyer because of delay in delivery shall be excluded before expiry of the grace period.
§ 7 Notice of Defect
1. Any notice of defect shall be sent to the seller within 12 days of receipt of the goods.
2. Any complaint about obvious defects shall be excluded after the start of customisation orother processing of the goods.
3. Any complaints about minor, technically unavoidable defects in quality, colour, width, weight, finishing or design customary in the trade shall be excluded.
4. In case of justified complaints, the seller shall have the right to subsequent improvement or delivery of defect-free replacement goods within 12 days of return of the goods.
5. After expiry of the period mentioned under Item 4 the buyer shall have the right to decrease the purchase price or withdraw from the agreement.
6. In case of returns, no matter which kind, handling fees and other costs shall not be reimbursed except for transport costs and postage.
7. Returns shall be made by the same forwarding company as was used for delivery, otherwise we shall charge for any additional costs incurred.
8. Insofar as the supplier shall take over the ticketing of retail prices for the buyer, the buyer shall be obligated to check the correct prices prior to sale. The supplier shall not be liable for incorrect price labelling.
9. The buyer shall notify the seller of any hidden defects immediately upon their discovery. Timely notification of defect shall only entitle the buyer to decrease the purchase price or withdraw from the agreement.
§ 8 Payment
1. The invoice shall be dated with the day of delivery or the day the goods are made available to the purchaser. Any extension of the value date of the invoice (loan extension) shall be excluded on principle. Should an early delivery be justified for the purposes of the contracting parties, the implementation clause may regulate exceptions to this provision.
2. Invoices shall be due and payable as follows:
1. within 10 days from date of Invoice with a 4 per cent cash dicount
2. within a period of 11 to 30 days from date of Invoice with a 2,25 per cent discount
3. within 31-60 days of date of invoice net.
The account shall be considered in default pursuant to § 286 II No. 1 BGB (German Civil Code) as of the 61st day.
3. Should the seller accept a bill of exchange instead of cash, cheque or bank transfer, a surcharge of 1% of the bill's amount shall be charged as of the 61st day when discounting the bill, if our payment terms of 60 days net after date of invoice are not met.
4. Interest paid in advance shall not be reimbursed.
5. Instead of the above regulation, a 10-day payment schedule customary in the trade
shall also be accepted.
Items 1-3 shall also apply for this kind of regulation.
6. Interest paid in advance shall not be reimbursed.
7. All Payments will be first credited against the oldest due debt plus default Interest and charges
8. In case of payment by cheque the postal stamp of the date of dispatch shall be binding. Bank transfers shall be deemed to be made on the date the payment is credited to seller's bank account.
§ 9 Default in Payment
1. Interest in arrears amounting to 8% above the base rate shall be charged for payments made after the due date.
2. The seller shall not be obligated under any current agreement to continue deliveries before any overdue accounts have been paid in full. The right to claim for damages caused by delay shall remain unaffected.
3. Should the buyer fall into arrears or in case of imminent insolvency or other significant deterioration of the buyer's financial circumstances, the seller may, after granting a grace period of 12 days, cancel the payment term and demand advance cash payment for any still outstanding deliveries under any current agreement prior to delivery of the goods or withdraw from the agreement or claim for damages.
4. The buyer shall bear any dunning charges incurred by us or an authorised collection agency in case of default of payment.
§ 10 Form of Payment
1. Payments shall be made in cash, per cheque, bank, giro or postal cheque transfer.
2. Set-off shall only be possible against undisputed or conclusively determined receivables. Retention of any due payments shall not be possible; this shall also apply in case of cessation of payments by the seller. Other deductions (e.g. postage, extraneous bank charges) shall be inadmissible.
3. Bills of exchange, insofar as they are accepted as payment, shall only be accepted if bank, discount and collection charges are reimbursed. Bills of exchange and acceptances with a term of more than 3 months shall not be accepted.
§ 11 Retention of Title
1. The goods shall remain the property of the seller until any receivables for the delivery of goods arising from the entire business relationship, including related costs and charges, damages and charges for the redemption of cheques and bills of exchange have been paid in full. The retention of title shall also remain in effect, if individual receivables of the seller become part of an open account and the balance is drawn and accepted.
2. Insofar as a central invoice clearing provider takes over the guarantee and is interpolated in the business transactions between seller and buyer, the seller shall assign title to the central invoice clearing provider upon shipment of the goods on condition precedent of payment of the purchase price by the central invoice clearing provider. The buyer shall only be released upon payment by the central invoice clearing provider.
3. The buyer may only sell or process the reserved goods in the ordinary course of business and provided his financial circumstances shall not strongly deteriorate.
4. The buyer shall hereby cede any claims and ancillary rights arising from the resale of the reserved goods -including all current account balance claims- to the seller.
5. As long as the buyer shall meet his payment obligations, he shall be authorised to recover the ceded claims. This authorisation shall be forfeited should the buyer fall in arrears or should his financial circumstances deteriorate significantly. In this case the buyer shall hereby authorise the seller to inform the customers of the cession of claims and to collect any receivables himself. The buyer shall provide any information necessary for the assertion of the ceded claims and shall permit the verification of this information. He shall in particular provide the seller upon request with a detailed list of receivables to which he is entitled, including name and address of the customer, amount of the individual claim, invoice date etc.
6. Should the value of the collateral available to the seller exceed all of the seller's claims by more than 10 %, the seller shall be obligated on buyer's request to release collateral at his discretion to that extent.
7. The reserved goods and/or ceded claims shall not be pledged or used as collateral. The buyer shall immediately inform the seller of any seizure, stating the attaching creditor.
8. Should the seller exercise his retention rights and take back the delivery item, this shall only constitute a withdrawal from the agreement upon seller's express declaration to that effect. The seller may satisfy his claims through the direct sale of the reserved goods he took back.
9. The buyer shall store the reserved goods for the seller free of charge. He shall take out insurance against the usual risks like fire, theft and water damage to the customary extent. The buyer shall hereby assign any claims for compensation against insurance companies or others liable for compensation arising from damages of the kind mentioned above to the seller to the extent of the invoiced amount of the goods. The seller shall accept the assignment.
10. Any claims as well as rights under retention of title in all special forms provided for under these Terms and Conditions shall remain in effect until the complete release from any liabilities (cheque, bill of exchange) the seller has accepted in the interest of the buyer.
§ 12 Samples
1. The buyer shall not be entitled to use the seller's styles as samples for other productions.
2. Samples shall be invoiced at the price of supply samples. No sample discount shall be granted.
§13 Should one or several provisions of this agreement be invalid, this shall not affect the validity of all other provisions.
§14 Any departure from these Terms and Conditions must be agreed in writing. Any failure to respond to other terms and conditions of the buyer of which we were informed shall not be considered acceptance of such conditions. The acceptance of goods shall infer an irrevocable acceptance of our conditions. This shall also apply for future purchases.
§15 Foreign business partners, too, shall be bound only by German law. The UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
§16 Settlement of Disputes
Any disputes arising from this agreement shall be settled by a court of law or an agreed court of arbitration. If it is agreed that competence shall not lie exclusively with the court of arbitration, the court applied to first shall be the competent court.
Code of Conduct
Bianca Moden GmbH & Co. KG expressly adopts the code of conduct agreed on 25.06.98 between the Central Federation of the Textile Industry of the Federal Republic of Germany, the Employers' Association of the Textile Industry of the Employers' Federation within the Clothing Industry Federation and the IG Metall metalworkers' union. We shall work towards our contractual partners complying with the provisions of the above IAO agreement (among others a ban on forced labour and child labour).