DE | EN
General Terms and Conditions of sale, delivery and payment of Premium Bodywear AG
§ 1 Scope of Application
(1) Our general terms and conditions of sale, delivery and payment are solely applicable. Conflicting or deviant conditions to our general terms and conditions of sale, delivery and payment of our customers will not be recognized, unless we have agreed in writing to their validity. Our general terms and conditions of sale, delivery and payment are also applicable, if we in cognizance of conflicting or deviant conditions to our general terms and conditions of sale, delivery and payment, implicitly conduct delivery to the customer. Our distribution agencies and our sales partners are not authorized to make deviant arrangements to our general terms and conditions of sale, delivery and payment or to acknowledge conditions of our customers.
(2) All agreements between us and our customers concerning execution of this contract are written own in this contract. Insofar are verbal side-agreements invalid. Side-agreements are only valid, if put into writing.
(3) Our general terms and conditions of sale, delivery and payment only apply to business in terms of § 310 Abs. 1 BGB, so for natural andjuristic persons or a partnership with legal capacity, which in conclusion of a legal transaction, act in exercise of their commercial or self-employed occupation (§ 14 BGB).
(4) Our general terms and conditions of sale, delivery and payment also apply for all further deals with our customer solely.
§ 2 Bidding, bidding documents
(1) Our customer’s orders are biddings for a conclusion of a deal in terms of § 145 BGB. We can accept these biddings within the time of twoweeks of receipt, verbal, by telephone and by sending a written confirmation by post, by telefax or by e-mail. If our written confirmation iscarried out by post it is sufficient for the timeliness of the bid’s acceptance that the post mark is within the previously mentioned 2 weeks term.
(2) We reserve our property and intellectual property rights on bidding documents such as illustrations, drawings, calculations and other in thecontext of the bid presented records. This also applies for written documents, which are designated as ‘confidential’. Sharing of this data withthird parties needs our explicit written approval.
§ 3 Prices, payment conditions, price change
(1) Our prices are effective from our warehouse or from our sub-supplier’s warehouse, exclusive packing and postage. Postage and packing willbe charged separately. The prices are quoted in Euro.
(2) The statutory VAT is not included in our prices. It will be accounted separately on the bill accordingly to the statutory rate on that day.
(3) We grant 5% discount on prices if paid in advance, meaning if the purchase price is paid after confirmation and before invoice. We furthergrant a 4% discount on settlement of the invoice within 10 days since invoicing practice and cash on delivery. Eventually the purchase price is tobe paid clear (without deduction) within 30 days of invoice date. The legal regulations concerning the default of payment apply. It’s up to thecustomer to pay their obligations in cash. In case of noncash payments the timeliness of the payment depends on the credit of the purchaseprice on our business account. The discount is ineligible, if our customers currently are in default with other claims from earlier deliveries.
(4) Payments by cheque and draft only are not acceptable.
(5) If we have justified reasons to doubt customer’s creditworthiness we are allowed to provide delivery service only against payment or paymentbond by a directly liable, irrevocable, indefinite and absolute bail of a German credit institution.
(6) Our customers only have charging claims, if counterclaims are legally assessed, unchallenged or accepted by us. Further he’s only entitled toexercise withholding rights, if his counterclaim is based on the same contractual relationship.
(7) Price change is allowed, if there are more than 4 months between conclusion of contract and agreed delivery date. If after the 4 monthperiod earnings, costs of material or the market cost prices increase, we are allowed to adequately rise prices according to the cost increase. Ifthe increase is more than 5% of the agreed purchase price, our customers are entitled to a short rate penalty (right to termination and withdrawal).
(8) If our customers are in default with payment obligations with us, all outstanding debts are due with the first demand of payment. As far aswe have agreed to payment in instalments with our customers, the whole outstanding debt is due to pay, if they fall behind with more than twoinstalments. That does not apply, if our customers get into default of payment through no fault of one’s own.
§ 4 Delivery time
(1) Delivery dates only apply approximately, unless we have named them in written and explicitly as binding. Only the annotation “fix” or “by …”on from us accepted customer’s orders does not fulfil the premise on the existence for a binding delivery date (so called firm deals). If bindingdelivery dates are arranged, the delivery date begins with dispatch of the confirmation, however not before adduction of applicable documents,permissions and clearances by the customer. A binding date is met, if before its expiration the readiness for dispatch is notified or the deliveryitem has left our or our sub-supplier’s warehouse. The delivery dates extends in case of actions such as industrial actions, particularly strikes andlockout and also in case of unforeseen obstacles, which are out of will, e.g. business disruption, delay in supply of essential materials, if suchobstacles are of verifiable importance for the delivery of the delivery item. That also applies if the foresaid circumstances occur at our pre-suppliers. The foresaid circumstances are also not arguable for us, if they occur at an already existing delay. In important cases the begin andend of such obstacles will be advised to the customer as soon as possible.
(2) If the customer gets default of acceptance or if he culpably violates his obligation to coperate, we are entitled to get extra expenses anddamages such as carrying charges, insurance costs, which insofar wouldn’t have occurred, replaced. Further claims are reserved.
(3) If the condition of default of acceptance is present or our customer willingly violates other obligations to coperate, the danger of a coincidental loss or a coincidental decline of the deal vest in the customer, if he has got into the default of acceptance or debtor.
(4) We shall be liable according to the legal regulations, if the underlying sales contract is a firm deal in terms of § 376 HGB. We shall also beliable according to legal regulations, if as a result of delivery delay represented by us the customer is eligible to claim that his interest on thefurther contract fulfilment does no longer exist.
(5) We further shall be liable according to legal regulations, if delivery delay is based on a grossly negligent or deliberate default on contract fromus. A default of our representative or assistant is to be imputing to us. If the delivery delay is not based on a from us caused deliberate default incontract, our liability is limited to predictable, typically occurring damage.
(6) We also shall be liable, if the from us caused delivery delay is based on a culpable violation of a basic contractual obligation. In this case, theliability for damages is limited to predictable, typically occurring damage.
§ 5 Purchase, passing of risk and partial delivery
(1) In lack of different agreement, the delivery of goods to our customers is taking place at our business location in Chemnitz-Wittgensdorf or at the business location of our sub-suppliers. Our customers are obligated to get or accept the delivery goods within 14 days after receipt of our notification of readiness or other messages at the handover place, unless he’s momentarily through no fault of one’s not able to do so.
(2) If our customers deliberately or grossly negligently are in arrears with the purchase of the object of purchase more than 14 days after receipt of the notification of readiness, we are entitled to further persecute our claim for performance or to claim compensation instead of performance. Further we are possibly entitled to claim back already provided performance according to prescriptions of right of withdrawal. There’s no need to set a respite, if our customer seriously and definitely has refused performance or if special reasons are existent, which under mutual consideration justify the immediate assertion of the claim of indemnification.
(3) In case that we assert compensation instead of performance, we are entitled to claim 20% of the agreed purchase price as compensation without extra evidence or an actual higher resulted compensation. Our customers are allowed to prove that no damage has occurred or considerably lower than the defined 20% allowance of the purchase price.
(4) We are allowed to reasonable partial delivery as long it is within the agreed time. Our customers can only insist on simultaneously delivery of belonging together items, if there’s an additional agreement about that.
(5) The danger, also of partial delivery, devolve to our customers the latest, when the goods in our warehouse or our sub-supplier’s warehouse are prepared for pickup and our customers have received our notification of readiness or other messages for the pickup of the goods.
§ 6 Packaging and shipment
(1) Packaging becomes our customer’s property. We bill our customers separately for postage and packing materials. If delivery by carries is explicitly contractual agreed between us and our customers, dispatch route and means of transport are ours to choose.
(2) If our customers wish, our deliveries will be covered by a cargo insurance. Arising costs are to bear by our customers.
(3) If shipment independent of negligence on the agreed way becomes impossible within the agreed time or agreed means of transport, we are allowed to choose other means of transport. Arising costs are our customers to bear. You will get the chance to comment to this prior, unless hereby the delivery unjustifiably delays.
§ 7 Sale
(1) Our customer obligates himself to only sell our products to end customers at the address, which you have named under ‘agreed point of sale’. If there’s no point of sale given, the given mailing address is the only point of sale. Our customers explicitly accept this obligation, because they know that exclusivity agreements for premium fashion products can be arranged.
(2) Further our customer obligates himself to not sell the delivered products to other retailers or wholesalers. The same applies for the resale or transfer to associated companies. Thereby it doesn’t matter if the companies are legally associated.
(3) Deviance from the clauses in break 1 and 2 need our explicit written confirmation.
(4) If there’s a violation of that our customers obligates himself to immediately pay a contract penalty in the amount of 20% of the ordered value of goods. Possible further claims for damages stay unaffected from this contract penalty bond.
§ 8 Reservation of proprietary rights
(1) We reserve our proprietary rights on the sale items until all payments are received from our customers.
(2) Our customers are obligated, to take care of the purchase items. In particular they are obligated to adequately secure them from fire, water and theft damages on their own expenses.
(3) On garnishment or access of a third party on the under reservation of proprietary rights delivered items our customers immediately have to notify us in writing, so we can charge third party appeal according to § 771 ZP0 and if necessary temporary remedy. Once the third party does not have the ability to compensate us the legal and extrajudicial costs, our customer is liable for the incidental damages for us.
(4) Our customers are allowed to resell the purchase items in proper transactions. Our customers dispone us all claims in height of the invoice sum (including VAT), which they are entitled to after disposition to consumer or third parties. The forward to us disponed claims our customers apply to the acknowledged balance plus in case of bankruptcy of our purchasers to the then existent ‘causal’ balance. Our customers are author-ized to collect these claims also after the abandonment. Our authorization to collect the claims ourselves remains unaffected. But we obligate ourselves to not collect the claim as long as our customer meet their obligation to pay with sales revenue, do not default and in particular do not file for bankruptcy or defaults is are existent. If that’s the case, we can demand that our customers announce us the abandonment claims and principals, all collection relevant information, the associated documents provide and notify the principals of the abandonment.
(5) If the purchase items get mixed with other, not to us belonging items we acquire co-ownership on the new items in relation of the value of the purchase item (invoice final amount including VAT) to the other mixed items to the date of mixture. If the mixture takes p lace in a way that our customer’s things can be regarded as the main thing, it is agreed that our customers proportionally confer co-ownership on us. Our customers keep the so resulted sole or co-ownership for us.
(6) We obligate ourselves to decontrol the to us entitled securities on our customer’s demand, if the marketable value of our security exceeds the to be secured claims with more than 10%. The choice of the to be decontrolled securities is ours.
§ 9 Liability for defects, limitation of warranty claims
(1) Our customer’s warranty claims imply that they have complied their investigation and objection obligation, according to § 377 HGB. So the buyers have to check the goods directly after receipt, if that goes with proper routine and to immediately report any defects to the seller. If the buyer refrains from reporting, the goods count as approved unless it’s about defects that could not be detected during the check. If such a fault comes up later, report has to be made immediately. Otherwise the goods count as approved also in consideration of that defect. To preserve the buyer’s rights, the timely dispatch of the report is sufficient. Our customer’s also have to check, if any other than the agreed goods have been delivered and if the agreed amount is exceeded or too low. The buyer has to mind the washing, caring and handling instructions and to advise the customers of them.
(2) Normally a prompt notice of defects, according to § 377 HGB is existent, if our customer in written reports visible defects or wrong amounts within 5 days of receipt. In case of hidden defects the notice of defects is prompt according to § 377 HGB if our customer reports the defects within 5 days of detection.
(3) In the notice of defects our customers have to name the kind and amount of defects correctly and to ask us to check the goods or let them check. In case that our customers do not have time to do so or fail to immediately make the reported goods available all warranty claims do not apply. With the objective checking of the defects or negative report no acknowledgment or disclaimer of these clauses is associated.
(4) If an item is defect, our customers are entitled to a removal of defect of their choice or a new delivery of new defect free items. If our customers chooses the removal of defect we are obligated to bear the costs for transport, way, labor and material, if it does not increase because the item(s) are transported to a different place than the destination and for the rest, if the performance is not in proportion to a success by repair. If our customers demand delivery of new, defect-free goods, according to § 439 Abs. 1 BGB, we are allowed to claim refund from our customers of the defect goods, according to regulations of withdrawal (§§ 346 — 348 BGB).
(5) If the removal of defects or the delivery of new, defect-free goods fails, our customers are entitled to a withdrawal or a reduction. Further our customers are also allowed to withdraw or to claim a reduction instead of a withdrawal, if they have set us a, for the amendment adequate, date and if we have abortively passed that date. Finally our customers are also entitled to withdraw from the contract, if we are based on impossibility or inability are not obligated to performance (§§ 437 no. 2, 326 Abs. 1 — 3 BGB).
(6) We are liable according to legal regulations, if our customers assert compensation claims, which are based on the intention or culpable negligence, including the intention or culpable negligence of our agent or assistant. If we are not charged for deliberate violation of contract, liability for tort is limited to predictable, typically occurring damages.
(7) We are liable according to the legal regulations, if we culpably violate an essential contractual obligation; in that case the liability for tort is limited to predictable, typically occurring damages.
(8) According to §§ 437 no. 3, 281 BGB our customers are entitled to compensation of their damage instead of performance, if they have set us a date, which is adequate to the circumstances, to fulfil the supplementary performance obligation and if that date has elapsed and we have according to §§ 280 abs. 1 Satz 1 BGB deal with a not insignificant breach of duty. Also in this case our liability is limited to the predictable, typically occurring damage. If our customers claim compensation instead of performance according to § 281 BGB, the contractual claim for performance according to § 281 Abs. 4 BGB lapses.
(9) Liability because of culpable violation of life of body or health remains unaffected; that also applies for the compulsory liability according to the product liability act. The limitation of warranty claims is 12 months from the time of passing of risk.
§ 10 Limitation of liability
(1) A liability of compensation further than in clause
§ 9 of this general terms and conditions of sale, delivery and payment, is without regard on the legal form of the claim excluded. That especially applies for compensation claims from default during conclusion of contract, because of other breach of duty or because of tort action for compensation according to § 823 BGB.
(2) The Limitation according to clause 1 also applies, if our customers claim reimbursement for useless expenditure instead of compensation for performance.
If liability for damages against is excluded or limited, this also applies in regard of personal liability for damages of our employees, personnel, agents and assistants.
§ 11 Contract penalty for selling copies
(1) If our customers offer copies of our provided or delivered original fashion articles in their shops, they obligate themselves in any case of the violation to a compensation in the height of 5.000,00 ‘E, irrespective of the amount or ways our customers have acquired the plagiarisms and planed to sell them.
We reserve the right to claim further damage. Our customers are allowed to adduce evidence, that no damage has occurred or is considerably lower than 5.000,00 €.
§ 12 Trademark law
(1) Premium Bodywear AG is the sole licensee of the brands Olaf Benz® and Manstore®. The licenses are valid worldwide. Both brands are internationally registered trademarks. Premium Bodywear AG is not entitled to issue sub-licenses. In this respect, there is and will not be under no circumstances a licensing connection with third parties. Our customers confirm that only we are permitted to use our brand names, for example as a URL or company name, and in this respect refrain from any registration or brand use of our brands.
(2) We provide our customers with images and files for advertising purposes. The use of these images and files is only permitted under the conditions documented in the latest version of the style guides. We reserve the right to change the style guides and the stipulations made therein. In this respect, our customers undertake to adapt the measures taken by us to the measures taken by us in a reasonable time frame at their brand touchpoints, in their premises, publications, websites, etc. The brand style guides are available in the login / download area at www.premiumbodywear.de.
§ 13 Transfer or rights and obligations
(1) Transfer of rights and obligations of our customers out of this contract need our written approval to be valid.
§ 14 Jurisdiction and place of fulfilment
(1) In the absence of another agreement our business location is also place of fulfilment.
(2) Solely law of the Federal Republic of Germany applies. The validity of the Uniform Law on the International Sale of Goods (CISG) is excluded.
(3) For any disputes that occur out of the contractual relationship, suit is to file at that court that is responsible for our jurisdiction. We are also allowed to file suit at the jurisdiction of our customer.
§ 15 Severability clause
(1) If single clauses from these general terms and conditions for sale, delivery and payment are partly or completely be invalid, the validity of the clauses remains unaffected. The parties will try to arrange an appropriate arrangement for this point in the case of invalidity of single clauses or parts of the clause.