GENERAL TERMS AND CONDITIONS OF SALE FOR ENTREPRENEURS
Art. 1 General, Scope of Application
- These General Terms and Conditions of Sale (“Terms and Conditions”) are valid for all business relationships with our customers in cases where the customer concerned is an entrepreneur (§ 14 BGB [German Civil Code]), a legal entity organized under public law or a separate asset fund organized under public law. The Terms and Conditions in the version in force at any time also apply as a framework agreement for future contracts for the sale and/or delivery of movable items with the same customer without us having to make reference to them in each individual case.
- Our Terms and Conditions shall apply exclusively. Individual agreements concluded with you in any specific case (including ancillary agreements, additions and amendments) shall only take precedence over these Terms and Conditions if they have been confirmed by us in writing.
- Declarations of legal relevance as well as notifications to be made to us after conclusion of a contract (e.g. setting of deadlines/allowance of time, notices of defects, declarations of cancellation or reduction in price) shall only be effective if made in writing.
- Indications relating to the application of statutory regulations shall be deemed as having clarifying significance only. The statutory regulations shall therefore apply even without such clarification except where or insofar as they are directly amended or expressly excluded in or by these Terms and Conditions.
- Our offers are without engagement and subject to confirmation. This shall apply even in cases where we have provided you with catalogues, other product descriptions or documents – including also in electronic form – to which we reserve title or copyright. Unless agreed otherwise in any individual case, our prices in force at the time of conclusion of the contract shall apply, whereby the prices are quoted ex warehouse and are subject to the addition of value added tax at the statutory rate.
- The placing of an order for goods by you counts as a firm offer to conclude a contract.
- Acceptance of the offer is expressed either in the form of a written order confirmation or through delivery of the goods to you.
- Unless expressly agreed otherwise, invoices are submitted in the form of an email attachment in PDF format. The invoice date is the date of dispatch of the goods. The purchase price is due and payable starting from issue of the invoice and is due within 30 days at most. In addition to these common payment terms are also required payments in advance for delivery of goods in cases of a new customer (first 3 orders) or when the current customer fails to comply with a maturity of the previous orders.
- On expiry of the aforesaid payment period, you will be deemed in arrears. Interest will be charged on payment arrears at a rate of 10% p.a. Dunning fees will be charged for the second reminder in an amount of EUR 2.50, for the third reminder in an amount of EUR 5.00, and for the fourth reminder in an amount of EUR 10.00. After the 4th reminder, claims will be placed in the hands of a collection agency. The costs arising in connection therewith will be charged to you.
- Should it become evident after the conclusion of a contract (e.g. through a petition for the opening of insolvency/bankruptcy proceedings) that our claim to the purchase price is endangered), we are entitled pursuant to statutory regulations to refuse to provide performance and to revoke the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (i.e. items made specially to customer’s order), we may revoke the contract with immediate effect; this shall be without prejudice to the statutory regulations relating to dispensability of the need to set a final deadline.
- Deliveries are carried out by a carrier/freight forwarder of our choice. The transport costs must be borne by you. Shipping costs are listed separately on our website. The delivery costs cover all costs for packing, delivery documents and the usual transport and final delivery costs for normal delivery. If, in order to meet a delivery date that has been agreed in writing, delivery is requested or required to be effected by express, courier or another similar delivery service, the additional costs incurred as a result must be borne by the customer.
1. Each partial delivery of goods is charged separately according to the Shipping Costs, which are listed separately on our website.
Art. 4 Right of offset; right to withhold payment
- You are only entitled to set off your own claims against our claims if your counterclaims have been finally established at law or have been recognized by us or if your counterclaims are undisputed. This is also the case if you notify us of defects or assert counterclaims. You, as the buyer, may however, only exercise a right to withhold payment in respect of counterclaims arising in connection with one and the same purchase contract.
Art. 5 Delivery time and delay in delivery
- Times or dates for delivery are approximate only unless they have been expressly agreed between us as being firm.
- The commencement of a delay in delivery shall be determined in accordance with the statutory regulations. In all cases, however, it will be dependent on the issue of a reminder by you.
- If we culpably fail to meet a time or date for delivery that has been expressly agreed as firm or if we fall into arrears for any other cause, you must allow a reasonable additional period of time in order for us to effect our performance. If we allow such additional time to elapse without providing due performance, you are entitled to cancel the contract. If we are unable to meet firmly agreed times or dates for delivery due to causes for which we are not responsible (non-availability of performance), we will notify you accordingly without delay and will at the same time inform you of the anticipated new delivery time or date. If the performance is still not available within or by the new delivery time or date, we shall have the right to cancel the contract either in whole or in part; we will return any counter-performance already made by you without delay.
- If the delay in delivery is due to culpable breach of a material contractual duty or to the culpable breach of an obligation the fulfilment of which is a precondition for proper performance of the contract and on fulfilment of which you, as the buyer, are normally entitled to rely, and if we are responsible for the said breach of duty, we may be held liable in accordance with the statutory regulations. In the case of ordinary negligence, our liability shall, however, be limited to the loss or damage occurring in the foreseeable and typically occurring scope only.
Art. 6 Delivery, passage of risk, acceptance procedure, delay in acceptance
- Delivery is effected ex warehouse, which is also the place of performance. On the buyer’s request, the goods will also be sent to another place of destination (“shipment sale”). We are entitled at all times to make part-delivery or part-performance, except where this would be unreasonable for the customer.
- The risk of accidental loss and accidental deterioration shall pass on handover of the goods or, in the case of shipment sales, on handover of the goods into the custody of the carrier, freight forward or other person or organization entrusted with the performance of carriage. Where an acceptance procedure has been agreed, this shall be authoritative for the passage of risk. Also in all other respects, the statutory provisions of the law relating to contracts for works and labour shall apply appropriately to any acceptance procedure which has been agreed. If the buyer is in arrears with acceptance, this shall be deemed tantamount to handover or acceptance.
- Should you fall into arrears with acceptance or fail to perform an act of assistance or should our delivery be delayed for other reasons for which you are responsible, we shall have the right to claim compensation for the loss or damage resulting therefrom, including any additional expenses (e.g. warehousing costs).
Art. 7 Reservation of title
- We reserve title to the goods sold until such time as all our present and future claims arising from the contract of sale and purchase and/or an ongoing business relationship (secured claims) have been settled in full.
Art. 8 Colour designations and sizes
- The colour designations and sizes stated in our publications (catalogue, internet etc.) are not governed by any standards. No deductions relating to actual dimensions or colour expectations may be drawn from such indications. Even within one and the same brand, different articles (e.g. a polo shirt and a T-shirt) can have completely different dimensions, despite bearing the same size designation. Especially in the case of so-called slim-fit/body-fit shirts, the sizes may not correspond to the unisex articles from the same brand. The same may also apply to women’s and men’s shirt from the same maker. It goes without saying that women’s shirts are cut differently from the corresponding men’s shirts, despite the fact that the stated size is identical. A colour with the same designation n look completely different on different brands and even on different articles of the same brand. Unfortunately, this problem can also not be resolved by the colour bars printed in the catalogue. Each colour bar printed in the catalogue appears different under different light sources, and it is virtually impossible to show textile colourings with 100% accuracy on printed paper. Therefore, deviations in colour and size do not, as a rule, serve as substantiation for claims for defects. This will, of course, not affect the return of goods pursuant to Art. 11. Additionally, your attention is urgently drawn to the fact that each textile item made of cotton or a cotton & polyester blend must be washed before being worn for the first time. Because of the (completely safe and non-hazardous) chemical residues to be found in textiles, it is possible that in cases where items are worn immediately without being washed first, chemical reactions may occur between body sweat and the residues, especially on exposure to UV light. The resulting colour impairments will remain in place even after future washings of the item. Complaints or claims are therefore usually barred in such cases.
Art. 9 Buyer’s claims for defects
- If and insofar as a delivered item is not of the nature or quality agreed between you and us or is not suited for the use foreseen under our contract or is generally not fit for use, we have a duty to effect cure. This does not apply in cases where we are entitled pursuant to statutory provisions to refuse to effect cure. You must allow us a reasonable period of time to effect cure.
- Your claims for defects are conditional on your having fulfilled your statutory duties to examine and notify of defects (§2106 Act. No 89/2012 CzechCivil Law Code Code). Complaints must be submitted to us without delay, i.e. within 3-4 working days or, in the case of hidden defects, immediately after discovery, in writing. The goods must be examined for defects by you or the processing firm before the start of any further processing (embroidering, printing or such like).
- Goods which are the subject of a complaint must be made available to us at an agreed place and an agreed time. If the goods have already been delivered onwards or distributed to several recipients, the costs for assembling the goods concerned will not be borne by us.
- Cure will be effected at your choice either by elimination of the defect (remedy) or delivery of a defect-free item (replacement). During the cure procedure, you are not entitled to reduce the purchase price or to cancel the contract. If we have attempted three times to effect cure but without success, cure shall be deemed to have failed. When cure has failed, you are entitled, at your option, to reduce the purchase price or to cancel the contract.
- You may assert claims for compensation on account of a defect only when cure has failed. This shall, however, be without prejudice to your right to assert further claims for compensation on the conditions set forth below.
Art. 10 Other liability
- Except as provided otherwise in these Terms and Conditions, including the following provisions, we may be held liable on the strength of the relevant provisions of law for any breach of contractual and non-contractual duties.
- We may be held liable for compensation – on any legal grounds whatsoever – in the case of wilful intent and gross negligence. In the case of ordinary negligence, we may only be held liable for
a) loss or damage resulting from injury or damage to life, limb or health,
b) loss or damage resulting from breach of a material contractual duty (a duty or obligation without the fulfilment of which the contract could not be performed in the proper manner at all and on fulfilment of which the other party to the contract consistently relies, and is entitled to do so); in this case, however, our liability shall be limited to compensation for the loss or damage that is foreseeable and of a kind that is typically likely to occur
- The limitations of liability set forth in paragraph 2 shall not apply if and insofar as we have fraudulently concealed a defect or have given our guarantee for the nature or quality of the goods. The same shall also apply to claims of the buyer made under the Czech legislation.
- The buyer may only repudiate or give notice of termination of a contract on account of a breach of duty which does not take the form of a defect if we are responsible for the breach of duty. A free right of the buyer to give notice of termination (especially pursuant to § 2001 et. seq. Czech Civil Law Code ) is barred. In all other respects, the statutory preconditions and legal consequences shall apply.
Art. 11 Goods – Returns
- Goods returned in as-new, unprocessed condition are accepted provided the preconditions set forth in Paras. 3 and 4 are fulfilled and the delivery was made not more than four weeks previously.
1.1 The following are generally not taken back:
- individually factory-packaged shirts and blouses, once they have been unpacked
- underwear and socks
- washed articles
- mouth nose protection
- enhancement foil products
- goods processed by the customer
The goods listed above will only be taken back if they have a hidden defect that was not discernible prior to further processing. Please note Art. 9 Para. 2 of these Terms and Conditions.
1.2 Goods of the Brook Taverner brand can only be taken back in the original packing and with the original clothes hanger.
1.3 Yarns will only be taken back in unopened boxes. Opened boxes, packs of variegated colours or individual rolls of yarn cannot be taken back.
- A return delivery must be accompanied by the return slip. Returns cannot be processed without a return slip. Where goods from several deliveries are returned together, the goods must be arranged separately within the consignment in such a way that they can be clearly and correctly assigned to the original delivery. A separate return slip is needed for each delivery note number.
- If the reason for returning the goods is an error on the part of the supplier, we will arrange for collection of the goods from you. Collection can be requested by telephone, telefax or email. It is also possible for you to send back the goods yourself. The costs for the return delivery will in this case be assumed by us if they do not exceed the costs of collection. After processing of the returns, you will receive a credit note for the value of the goods including the return costs, without any deduction.
- If no error on the part of the supplier occurred, please return the goods to us accompanied by the return slip or slips. In this case, after processing of the returns, you will receive a credit note for the value of the goods, less a deduction of 25%, or at least EUR 5.00 for each of the original deliveries, for the handling costs. In this case, delivery costs will not be credited. If, in previously agreed exceptional cases and in deviation from Para. 1 above, we also take back shirts and blouses that have been unpacked, the handling costs for these articles will be 50%.
Art. 12 Limitation period
- The mutual claims of the parties hereto shall lapse after the periods specified by law, except as provided otherwise in the following.
- In deviation from § 2161, § 2165 a 2113 Civil Law Code, the general limitation period for claims arising for defects of quality and title is one year from delivery. Where an acceptance procedure has been agreed, the limitation period shall start on acceptance.
- The special statutory provisions relating to real rights of return of third parties, claims for recourse against the supplier and the claims to compensation specified in Art. 10 Paras. 2 and 3 hereof shall remain unaffected. In these cases, the statutory provisions relating to limitation shall apply exclusively.
Art. 13 Copyright
- You, as the customer, have sole liability if rights of third parties, in particular copyright, are infringed through the execution of your order. You have a duty to indemnify the contractor and hold the contractor harmless from all claims arising on account of such infringements.
Art. 14 Choice of law and legal venue
- These Terms and Conditions and all legal relationships between us shall be governed by the law of the Federal Republic of Germany; the application of all international and supranational systems or orders of (contract) law, in particular the UN Convention on Contracts for the International Sale of Goods, is barred. The preconditions for and the effects of the reservation of title pursuant to Art. 7 hereof shall, on the other hand, be subject to the law in force at the place of storage of the item concerned if the choice of law in favour of German law should be inadmissible or ineffective under the aforesaid law.
- Where the buyer is a “merchant” (“Kaufmann”) as defined in the German Commercial Code, a legal entity organized under public law or a separate asset fund organized under public law, the exclusive – international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between the parties shall be our place of business. We are, however, also entitled to bring legal action at the buyer’s general place of jurisdiction.
Art. 15 Severance clause
- Should any of the provisions of these Terms and Conditions be or become wholly or partially ineffective or should any gap or omission be found in them, this shall have no effect on the effectiveness of the other provisions or any part thereof. The respective statutory regulations shall apply in place of the ineffective or missing provisions.