Terms and Conditions
General Terms and Conditions of the German Textile Industry
Section 1 Area of validity
1. The General Terms and Conditions apply exclusively between merchants.
2. The following General Terms and Conditions of the German Clothing Industry apply to all deliveries and services of the vendor. The vendor shall not accept any General Terms and Conditions of Business of the buyer unless the vendor has expressly agreed to their validity in writing. This also applies if the vendor performs the services without reservations in the knowledge of terms opposing the Terms and Conditions of Business, or deviating from the General Terms and Conditions of Business.
Section 2 Place of performance, delivery and acceptance
1. The place of performance for all services resulting from the delivery contract is the vendor’s place of business.
2. The delivery of goods is ex domestic works. Shipping costs are borne by the buyer. The buyer can decide which carrier to use. The goods are not insured for shipping. A shipping notice can be arranged.
3. Packaging costs for special packaging are borne by the buyer.
4. Sorted and combined partial shipments ready for sale must be processed quickly and announced beforehand. Unsorted items are only admissible with the consent of the buyer.
5. If, at the buyer’s fault, acceptance is not made in time, the vendor shall, if desired, have the right either to invoice the goods with payment due immediately (payment in arrears), to withdraw from the contract or to request compensation after expiry of an additional period of 12 calendar days.
Section 3 Place of jurisdiction
At the claimant’s request, the place of jurisdiction (including bills of exchange and cheques) can be either the location of a German place of business of one of the parties, or the registered offices of the professional or cartel organisation responsible for the vendor (Stuttgart). The court first seised is deemed responsible.
Section 4 Content of the contract
1. Goods shall be delivered on specific dates (working day or within a specific calender week). All sales shall be concluded with respect to specific quantities, items, quality categories and fixed prices. Both parties are bound by this requirement. Goods on sale or return shall not be undertaken.
2. Block orders are permissible and a time limit must be set at the conclusion of the contract. The deadline for acceptance may not exceed 12 months.
Section 5 Interruption to delivery
1. In the event of force majeure, actions related to labour disputes for which neither party is responsible, and other disruptions to operations with a duration or likely duration of more than one week, the delivery/acceptance deadline shall be automatically extended by the duration of the interruption, with a maximum extension period of 5 weeks. The extension only applies if the other party is notified without delay of the reason for the interruption as soon as it becomes clear that the delivery/acceptance deadline cannot be met.
2. If the delivery/acceptance does not take place within the extended delivery/acceptance deadline outlined in the circumstances pursuant to Item 1, the other party may withdraw from the contract after a period of an additional 12 calendar days.
3. All claims for damages shall be excluded in the cases outlined in Item 1 if the contractual partner in question has fulfilled its duties pursuant to Item 1.
Section 6 Grace period for delivery
1. After the delivery deadline has passed, a grace period for delivery of 12 calendar days is initiated without any express arrangement. After this grace period has passed, the buyer may withdraw from the contract by serving written notice. If the buyer wishes to claim damages in place of performance, s/he must give the vendor a four-week deadline after the end of the agreed delivery deadline.
2. For goods in stock that are ready for dispatch and NOS goods, the grace period for delivery is 5 working days. If the delivery cannot be supplied, the buyer must be notified immediately. Furthermore, the provisions pursuant to Item 1 apply.
3. Prior to the end of the grace period for delivery, any claims on the part of the buyer owing to late delivery are excluded, provided that Section 8, Items 2 and 3 do not apply.
Section 7 Notice of defects
1. For obvious defects, notice of defects must be submitted to the vendor within 12 calendar days of receiving the goods. The vendor must be notified by the buyer of any concealed defects immediately upon their discovery.
2. After the goods have been cut to size or processed in any way, all claims relating to obvious defects are excluded.
3. Minor deviations in quality, colour, width, weight, coating or design that cannot be technically avoided are not subject to dispute. This also applies to standard deviations found in retail goods, unless the vendor has promised in writing the delivery of goods according to sample.
4. For justified complaints regarding obvious defects, the buyer has the right to either rectification of defect or the delivery of replacement goods free of defects at the discretion of the vendor. In such cases, the costs of delivery are borne by the vendor. If the vendor does not rectify the defects, the buyer is only entitled to reduce the purchase price or to withdraw from the contract, provided Section 8, Items 2 and 3 do not apply.
5. In the case of concealed defects, the buyer only has the right to reduce the purchase price or to withdraw from the contract if Section 8, Items 2 and 3 do not apply.
6. If the notice of defects is not provided within the stated period, the goods are deemed accepted.
Section 8 Compensation
1. Claims for damages by the buyer are excluded where nothing to the contrary has been agreed in these provisions.
2. The exclusion in Item 1 does not apply where liability exists in accordance with the German Product Liability Act, in the event of wilful intent, gross negligence by the owner, legal representative or management, for fraudulent intent, non-compliance of an assumed warranty, for culpable infringement of essential contractual duties; essential contractual obligations are those whose fulfilment define the contract and upon which the buyer must be able to rely. Claims for damages resulting from the infringement of essential contractual duties is, however, limited to the claims typical and foreseeable for this type of contract, provided no other cases are listed under a provision referred to as clause 1.
The aforementioned provisions are not associated with any change in the burden of proof to the detriment of the buyer.
Section 9 Payment
1. The invoice shall be raised on the day of delivery/provision of the goods. Postponing the due date (fixing the value date) is prohibited.
2. Invoices shall be payable:
1. Within ten (10) days of the invoice being raised and the goods being dispatched. In such cases, a 4% express payment discount shall apply.
2. Between 11 and 30 days of the invoice being raised and the goods being dispatched. In such cases, a 2.25% discount shall apply.
3. Between 31 and 60 days of the invoice being raised and the goods being dispatched, the net amount shall be due.
After the 61st day, the customer shall be deemed in default in accordance with Section 286, Para. 2, No. 1 of the German Civil Code [BGB].
4. In place of the aforementioned provision, the following may be applied, provided that the buyer is bound to this for at least 12 months:
|Invoices from||to be paid with a 4% discount||to be paid on with a 2.25% discount||to be paid net on|
|1st–10th of a month||15th of the same month||5th of the following month||5th of the subsequent month|
|11th–20th of a month||25th of the same month||15th of the following month||15th of the subsequent month|
|21st–last day of a month||5th of the following month||25th of the following month||25th of the subsequent month|
5. Any changes in the method of settlement must be announced three (3) months in advance.
6. Payments are always used to settle the oldest payable accounts, plus any interest due on them.
7. The final date upon which the amount is credited to the vendor’s account is used as the basis for determining the timeliness of payment.
Section 10 Payments after due date
1. For payments after the due date, interest shall be added at a rate of 9 percentage points above the relevant base rate in accordance with Section 247 of the German Civil Code [BGB]. Furthermore, Section 288 of the German Civil Code [BGB] shall apply.
2. Until such time as outstanding amounts including interest are paid in full, the vendor is under no obligation whatsoever to perform in relation to any ongoing delivery contracts. The right to claim damages for defaults on payment is unaffected.
3. In the event of substantial deterioration in pecuniary circumstances, such as impending insolvency or default on payment, the vendor may refuse performance for all delivery contracts based on the same legal relationship or may withdraw from these delivery contracts after setting a grace period of 12 calendar days. Furthermore, Section 321 of the German Civil Code [BGB] shall apply. Section 119 of the German Insolvency Code [InsO] remains unaffected.
Section 11 Offsetting and right of lien
The offsetting and withholding of invoiced amounts due is only permissible for undisputed or legally upheld claims, provided that they are not claims for damages that have a close correlation to the entitlement of the buyer to perfect fulfilment of contract.
Section 12Retention of title
1. Until full payment of all claims resulting from the delivery of goods for the duration of the business relationship as a whole has been made, including any ancillary claims, claims for damages and honouring of checks and bills of exchange, the goods shall remain the property of the vendor. Retention of title shall continue to exist if the vendor's individual claims are absorbed by a current account and the balance is determined and recognised.
2. If the goods subject to retention of title are combined, mixed or processed by the buyer to create a new commodity, this shall be done without any obligations arising for the vendor. If goods are combined, mixed or processed, the buyer does not acquire ownership of the new commodity pursuant to Section 947 et seq. of the German Civil Code [BGB]. If goods are combined, mixed or processed with items not belonging to the vendor, the vendor acquires co-ownership of the new commodity according to the ratio of the invoice value of his/her goods subject to retention of title to the total value.
3. If a central settlement office assumes the del credere between the vendor and buyer, the vendor transfers ownership with the dispatch of the goods to the central settlement office on the condition of payment of the purchase price by the central settlement office. The buyer is only released from obligation upon payment by the central settlement office.
4. The buyer shall only be entitled to resell or process the goods under the following conditions:
a) The buyer may only resell or process the goods subject to retention of title in the course of ordinary business operations, provided there is no subsequent substantial deterioration in his/her pecuniary circumstances.
b) The buyer hereby assigns the claim to all ancillary rights resulting from the resale of goods subject to retention of title – including any balance claim – to the vendor. The vendor hereby accepts this assignment.
c) If the goods have been combined, mixed or processed and the vendor has requested co-ownership to the amount of the invoice value, s/he is entitled to claim the purchase price in proportion to the value of his/her rights to the goods.
d) If the buyer has sold the claim as part of genuine factoring, the buyer will assign the claim against the factor taking its place to the vendor and will pass on to the vendor his/her sales proceeds pro rata to the value of the rights of the vendor to the goods. The buyer undertakes to reveal the factor of the assignment if s/he is in arrears with the payment of an invoice by more than ten (10) calendar days or if there is a significant deterioration in his/her pecuniary circumstances. The vendor hereby accepts this assignment.
e) The buyer is authorised to collect the ceded claims, provided that s/he fulfils his/her payment obligations. This authorisation to collect expires if the buyer is in arrears or if there is a significant deterioration in his/her pecuniary circumstances. In such cases, the vendor is authorised by the buyer to inform any subsequent buyers of the assignment and to collect the ceded claims himself/herself. In order to make the ceded claims valid, the buyer must provide necessary notification and to allow inspection of these notifications. In particular, the buyer must provide the vendor upon request with an exact list of the claims to which s/he is entitled with the name and address of the subsequent buyer, the amount of the individual claim, date of invoice, etc.
5. If the value of the vendor’s current collateral exceeds his/her entire demands by more than 10%, the vendor is obliged, at the request of the buyer, to release collateral at the vendor’s discretion.
6. Pledging or collateral assignment of goods subject to retention of title or ceded claims is not permitted. The vendor must be notified immediately of any pledges made, stating the garnisher.
7. If the vendor takes back the delivery item by exercising his/her retention of title, this does not automatically constitute a withdrawal from the contract. The vendor may settle this issue regarding returned goods subject retention of title by means of private sale.
8. The buyer shall store the goods subject to retention of title for the vendor at no extra cost. The buyer must provide sufficient insurance cover for the usual risks, such as fire, theft and water damage. The buyer hereby assigns his/her claims to compensation against the insurance companies or other parties liable to pay compensation that arises from damage to the types listed above to the vendor to the amount of the invoice value. The vendor hereby accepts the assignment.
9. All claims and titles arising from the retention of title to all the special forms specified in these provisions will remain valid until complete release from all contingent liabilities (cheques, bills of exchange) that the vendor has assumed in the interests of the buyer. The buyer is permitted under the provision referred to as clause 1 to engage in factoring in respect of receivables outstanding. S/he must, however, inform the vendor before incurring any contingent liabilities.
Section 13 Applicable law
These Terms & Conditions are governed by the laws of the Federal Republic of Germany. The agreement by the United Nations Convention on the International Sale of Goods dated 11/04/1980 is excluded.