General Terms and Conditions of Business of TAM Fashion GmbH

§ 1 General Information - Scope of Application

These Terms and Conditions of Sale apply solely to companies within the meaning of section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law within the meaning of section 310 (1) BGB. We accept only terms and conditions of the buyer that conflict with or differ from our Terms and Conditions of Sale if we expressly agree to their application in writing.

§ 2 Offer and Order Acceptance

2.1. Our offers are non-binding.

2.2. The order submitted by the buyer is binding. We are entitled to accept this offer within two weeks by sending an order confirmation or by sending the buyer the ordered goods within this time period.

§ 3 Prices/Offset/Right of Retention

3.1 Unless otherwise agreed, our prices our “ex works”. The forwarding costs shall be borne by the buyer. In addition, the statutory value added tax applicable on the day of delivery will be charged.

3.2 Charges will only be levied for packaging if forwarding in special packaging is requested by the buyer.

3.3 Invoices are due for payment immediately after their receipt.

3.4 The deduction of discount is subject to separate written agreement.

3.5 Interest on arrears is calculated at 8 percentage points p.a. above the respective base rate. The right to assert further damage caused by default is reserved.

3.6 The buyer is only entitled to offset if its counterclaims have been definitively established in law, undisputed or have been recognised by us. In addition, the buyer is authorised to exercise its right of retention insofar as its counterclaim is based on the same contractual relationship.

§ 4 Delivery and Delivery Period

4.1 The start of the delivery period we specify is subject to the punctual and proper fulfilment of the client’s obligations. We reserve the right of objection of unfulfilled contract.

4.2 We shall forward the goods without insurance unless otherwise agreed. The forwarding costs shall be borne by the buyer.

4.3 If the buyer defaults on acceptance or if it negligently breaches other duties to cooperate, we shall be entitled to demand compensation for damage incurred in this respect, including any additional expenditure. If the buyer fails to meet its obligation to purchase the ordered, defect-free goods and we are therefore entitled to compensation, the buyer is obliged to pay us lump-sum compensation of 10% of the agreed purchase price. The buyer expressly retains the right to prove that damage or a reduction in value has not taken place or is significantly less than the lump sum. The right to assert any further claims is expressly reserved.  

4.4 The risk of accidental destruction or accidental deterioration of the object of sale shall pass to the buyer at the time when the latter has defaulted on acceptance or defaulted on payment.

4.5. Part-deliveries and performances are admissible, and we may bill them separately.

4.6. Force majeure or disruptions in operation which occur at our premises or those of our suppliers, and which temporarily prevent us from delivering or rendering our performance on the agreed date or within the agreed time period through no fault of our own will change the agreed dates and time periods by the duration of the disruption in performance caused by these circumstances. If corresponding disruptions lead to a performance delay of more than two months, the customer may withdraw from the contract. Other rights of withdrawal shall not be affected thereby.

§ 5 Passage of Risk During Forwarding

If the goods are forwarded to the buyer at its request, the risk of accidental destruction or accidental deterioration of the goods shall pass to the customer upon dispatch to the buyer or at the latest when the goods leave the warehouse. This applies regardless of whether the goods are d ispatched from the place of performance or who bears the carrying charges.

§ 6 Retention of Title

6.1 We reserve title to the items supplied by us or in our name until payment of all the claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always explicitly refer thereto. We are entitled to take back the object of sale if the buyer behaves contrary to the terms of the contract. This does not apply in the case of an only minor breach of duty by the buyer.

6.2 The buyer shall be obliged to handle the object of sale with care as long as title to the goods has not yet passed to it, and notify us immediately in writing if the item supplied is confiscated or exposed to other third-party interventions.

6.3 The buyer is entitled to resell the reserved goods in the normal course of business dealings. The buyer shall herewith already assign to us the customer’s claims arising from resale of the reserved goods in the sum of the purchase price. This assignment applies regardless of whether the object of sale has been resold without being processed or after it has been processed. The buyer is authorised to collect the receivable even after assignment has taken place, unless we have issued any instructions to the contrary. Our authority to collect the receivable ourselves shall not be affected thereby. However, we shall not collect the receivable as long as the buyer meets its payment obligations and, in particular, has not filed for the institution of insolvency proceedings.

6.4 The treatment and processing or transformation of the object of sale by the buyer shall always be carried out in our name and on our behalf. In this case, the buyer’s contingent right to the object of sale shall continue with the modified item If the object of sale is processed with other items not belonging to us, we shall acquire joint title to the new item in proportion to the objective value of our object of sale compared with the other processed items at the time of processing. The same applies in the event of mixture. If the mixture takes place in such a way that the buyer’s item is to be considered the principal item, it is agreed that the buyer will transfer joint ownership to us on a pro rata basis and hold the resultant sole property or joint property for us in safe custody.

6.5 We shall undertake to release the security that we hold at the buyer's request insofar as the v alue thereof exceeds the claims to be secured by more than 20%.

§ 7 Warranty, Recourse/Manufacturer’s Recourse, Exclusion from liability

7.1 Warranty rights of the buyer are subject to the latter having duly complied with its obligations to examine the goods and give notice of defects in accordance with section 377 of the German Commercial Code (HGB).

7.2 Should the supplied goods have a defect which already existed at the time of the passage of risk despite all care being taken, we shall remedy the defect or deliver a substitute item at our discretion, subject to having received notification of the defect within the required time. We must always be given the opportunity to render supplementary performance within a reasonable time period.

7.3 If supplementary performance fails, the buyer may withdraw from the contract or reduce the fee, irrespective of any compensation claims.

7.4 No claims for defects can be asserted if there is only a negligible or standard deviation in quality, colour, width, equipment, weight or design from the agreed condition, if use is only slightly impaired, if the production specifications provided by the buyer are defective or the software made available to use by the buyer for the cut or manufacture of the goods is defective or in the case of natural wear and tear such as when damage occurs after the passage of risk due to defective or negligent handling or overuse or due to special external influences that are not requirements under the contract. If improper fault rectification work or changes are made by the buyer or third parties, n o claims for defects may be asserted for these or the resultant consequences.

7.5 Claims by the buyer due to expenses required for the purpose of subsequent performance, especially transport, travelling, labour and material costs, are excluded insofar as the expenses increase because the goods we supplied were subsequently conveyed to a location other than the registered office of the buyer, unless the conveyance corresponds to their use under the terms of the contract.

7.6 The buyer has rights of recourse against us only insofar as the buyer has not reached any agreements with its customer that go beyond the mandatory statutory claims for defects. In addition, § 7.5 accordingly applies with regard to the extent of the buyer’s right of recourse.

7.7 All other claims by the buyer are excluded, irrespective of the legal basis, as well as the reimbursement of damage of any kind, even damage not incurred by the object of sale itself (e.g. use/production shortfall, lost profit or other consequential damage).

7.8 The exclusion from liability pursuant to § 7.7 does not apply to intent or gross negligence on our part or on the part of our vicarious agents, or to culpable infringement of essential contractual obligations. The exemption from liability shall also not apply in cases where pursuant to §§ 1 and 4 of the Product Liability Law liability is stipulated for personal or material damage to objects used privately if there are defects in the object of sale. It shall also not apply in the case of a guaranteed quality if the guarantee was especially intended to protect the buyer against damage not incurred by the object of sale. The exclusion from liability also does not apply if we or our vicarious agents have caused damage to the legally protected rights of life, physical safety and health due to a culpable breach of duty.

7.9 Claims for defects shall become statute-barred within 12 months after delivery of the goods to t he buyer. This does not apply in the cases specified in § 7.8.

§ 8 Miscellaneous

8.1 This contract and the entire legal relations of the parties are subject to the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

8.2 The place of performance and the sole place of jurisdiction for all disputes arising is Michelfeld.

8.3 Should any individual provisions of this contract be or become invalid or should they contain an omission, the remainder of the provisions shall not be affected thereby. The parties shall undertake to agree a legally admissible provision in place of the invalid provision that comes closest to the economic purpose of the invalid provision or fills in this omission.

Michelfeld, 01.09.2016