Terms & Conditions

§ 1 Application

These terms and conditions shall apply to all business transactions with the contractual partner except where agreed otherwise in writing. Any terms and conditions which vary from these shall not be valid unless expressly approved by us in writing. Any transfer of the rights and obligations of the contractual partner under the agreement concluded with us shall only be valid where approved by us in writing.

§ 2 Contract conclusion and rescission

The scope, subject matter, form, colour and design of the deliverables shall be governed by the purchase agreement. We will have the right to unilaterally change or deviate from the performance promised in the purchase agreement to the extent that quantity and quality tolerances customary in commercial practice are observed. This will be communicated to the other contracting party by sending a cancellation list.

In any case changes in design or form which are based on improved technology or legislative requirements shall be reserved during delivery, provided that the item deliverable is not substantially changed and the changes are reasonably acceptable to the other contracting party. We shall have the right to rescind the contract concluded as a whole if the customer acts in breach of contract. Inadequate customer’s credit rating, including wrong details concerning such credit rating, shall be a permissible reason for rescission. If our purchase price claim is at risk, we shall be entitled to rescind the contract by pleading the objective lack of the customer’s creditworthiness.

§ 3 Delivery

The goods are delivered ex-factory. Dispatch costs are payable by the contractual partner. Unless otherwise agreed between the parties, the goods will be sent uninsured. Where the contractual partner is a business, the risk of accidental destruction and accidental deterioration of the goods is transferred to the contractual partner on handover and in the case of sales shipment on acceptance of the goods by the shipping agent, freight carrier or other person or institution designated to carry out the shipment. Where the contractual partner is a consumer, the risk of accidental destruction and accidental deterioration of the item purchased only passes to the contractual partner on handover of the item including in the case of sales shipment. The goods are deemed to have been handed over even where the contractual partner delays acceptance. Part deliveries are permitted. The delivery period shall begin with the sending of the order confirmation but not before the presentation of any documentation, permits and releases to be obtained by the ordering party or before the receipt of an agreed deposit. The specified delivery period is regarded as having been met where, by the last day, notice has been given of readiness to ship or where the delivery object has left the factory. The delivery period shall be extended in the case of action relating to industrial disputes, in particular strikes and lock-outs and in the case of unforeseen obstacles outside our control, e.g. disruptions in operation, delays in the supply to us of basic materials, in so far as such obstacles can be proven to have had a significant impact on delivery of the goods. This shall also apply where subsuppliers are affected by such circumstances. The delivery period shall be extended in accordance with the length of such action and obstacles. Furthermore, we shall not be responsible for the circumstances described above even where they arise during an existing delay. In serious cases, we shall inform the contractual partner as soon as possible of the beginning and the end of such obstacles. Where the goods are not accepted immediately on delivery because of a circumstance for which the contractual partner is responsible, we may at our discretion, after granting an extension of one week, either request immediate payment of the purchase price or withdraw from the agreement or claim damages.

Packaging becomes the property of the contractual partner and is billed by us. Charges for postage and packaging are billed separately. The method of shipping will be selected at our discretion.

§ 4 Failure to deliver or delay in delivery

In the case of exclusive designs, the order shall be accepted under the condition that we sell a quantity of the goods which corresponds to the minimum amount of material to be taken by us from our suppliers. In the case of manufacturing faults in our production, faults in the material and where the quantities of material stocked by us are insufficient to produce the required number of items, we are entitled to deliver correspondingly lower quantities. The contractual partner shall not be entitled to claim compensation for damages in such cases. In cases of force majeure, industrial disputes, official action and operational disruption not caused by our own fault, the delivery or acceptance deadline shall be extended by the length of the relevant obstacle. If it is likely that delivery deadlines may not be met, the contractual partner shall be notified of the reason for and the anticipated duration of the obstacle. Following the expiry of the delivery deadline, the contractual partner shall be entitled to give us 4 weeks’ written notice to deliver.

On expiry of this extended deadline, the contractual partner shall be entitled to withdraw from the agreement, where it made clear its intention to do so when issuing the warning at the same time as declaring that it would refuse fulfilment of the contractual obligation after expiry of the deadline. Where there is no such declaration in the extension notice, we shall, on expiry of the deadline, be released from the obligation to deliver, where we have requested the contractual partner, either during or after the expiry of the extension period, to tell us whether it intends to demand fulfilment of the agreement and where the contractual partner fails to respond promptly to this request. We do not carry out fixed date purchases. The contractual partner is not entitled to assert any further claims, in particular claims for damages, on the grounds of delayed delivery.

§ 5 Guarantee rights

In the first instance, we shall make good any faults in the goods at our discretion by rectification or replacement delivery. If rectification fails, the contractual partner shall in all cases be able to choose between a reduction in the amount payable or rescission (cancellation) of the agreement. However, in the case of minor contractual breaches, in particular variations in quality, colour, design, finishing or working such as are usual in the trade, the contractual partner shall not be entitled to cancel the agreement. Contractual partners must notify us in writing of any obvious faults within 10 days of receipt of the goods, otherwise any assertion of guarantee claims shall be invalidated. The postmark date shall be taken as the date of notification. The contractual partner shall be required to provide all evidence of any circumstances leading to its claim, in particular with respect to the actual fault, the date on which the fault was first identified and the punctual submission of the complaint. Where the contractual partner chooses to withdraw from the agreement on the grounds of a deficiency in title or material fault following an unsuccessful attempt at rectification, it shall not be entitled in addition to any compensation for damages on account of the fault. Where the contractual partner opts for the payment of compensation for damages following an unsuccessful attempt at rectification, the contractual partner shall retain the goods at its premises where it may reasonably be expected to do so. Compensation for damages shall be limited to the difference between the purchase price and the value of the faulty item. This provision shall not, however, apply where we have maliciously caused the breach of contract.

In the case of businesses, the guarantee period shall be one year from delivery of the goods. In the case of consumers, the guarantee period shall be two years from delivery of the goods. In the case of used items, the limitation period is one year from delivery of the goods. This shall not apply where the contractual partner fails to notify us of the fault in the correct time. With respect to the characteristics of the goods, in all cases only the manufacturer’s product description is regarded as part of the agreement. Official statements, praise or advertising of the manufacturer shall not represent any additional contractually binding characteristics of the goods. The customer shall not receive any warranty from us in the strict legal sense. This shall not affect manufacturers’ warranties.

§ 6 Payment

The invoice shall be issued on the date of dispatch or supply of the goods. The purchase price and any fees payable for additional services shall be due on hand-over of the delivery object. Any deferral of the due date (extension) shall require a special written agreement. Invoices are payable: within 10 days of the date of issue of the invoice with 4 % prompt payment discount; between 11 and 30 days from the date of issue of the invoice net. Where our prices are quoted in a foreign currency, we shall be entitled to increase them in the same proportion as any change to our disadvantage in the official conversion rate of the EUR to the foreign currency between the date of the order confirmation and the date of delivery. In the case of payment by cheque, the definitive date is taken to be the date of encashment of the cheque; for transfers the definitive date is that on which the amount is credited to our account. In the case of bills of exchange accepted after expiry of our net payment terms, i.e. from the 31st day after the invoice date, we shall be entitled to demand a 1% supplement on top of the amount of the bill. Payments shall in all cases be used in settlement of the oldest amounts outstanding plus any delayed payment interest due. Price changes are permitted where there are more than four months between conclusion of the agreement and the agreed delivery date. After this period and up to the point of delivery, where there is an increase in wages, material costs or market cost prices, we shall be entitled to increase the prices appropriately in the proportion of our increased costs. The contractual partner shall only be entitled to withdraw from the agreement where the increase in price exceeds the increase in the general cost of living between the order and delivery by more than an insubstantial amount. Where the contractual partner is a trader, a legal entity under public law or a special fund under public law, price changes in accordance with the above provisions are permitted where there are more than six weeks between conclusion of the agreement and the agreed delivery date.

§ 7 Payments

Payment after the due date shall be subject to delayed payment interest of 8% above the base rate. The contractual partner shall be considered in default of payment no more than 30 days after the due date and receipt of the goods. Until full payment is made of outstanding invoice amounts including delayed payment interest, we shall not be obliged to make any further deliveries in relation to any current agreement. Where payment is not received within 30 days of the invoice date, the delivery dates for all other current orders shall be extended, with no requirement for notification by us, by the period from the 31st day after the invoice date until full payment is made. Where the contractual partner is in default with an outstanding payment or where its financial position significantly worsens, we may suspend the target payment date and request payment in cash for any outstanding deliveries under any current agreement before delivering the goods. We may also demand the immediate return of goods already delivered, without this constituting a withdrawal from the agreement. Where the contractual partner is in default of payment or where its financial position significantly worsens, we may also, at our discretion, withdraw wholly or partially from all current agreements. Where the contractual partner is in default of payment, it shall be obliged to pay all applicable charges. This shall also apply in particular in the case of unauthorised withholding of invoice amounts due and the opening of insolvency proceedings in relation to the assets of the contractual partner. Where the contractual partner is in default of payment, it shall also be obliged to pay any costs incurred by us through the appointment of a collection agency or of a German or foreign solicitor.

§ 8 Method of payment

Payment should be made in cash, by cheque, bank or giro transfer in euros. Where the contractual partner is a merchant, a legal entity under public law or a special fund under public law, the withholding of payments, on the grounds of any counter-claims of the contractual partner which are not recognised by us, is not admissible, nor is any offsetting of amounts against the same. With the exception of the discounts specified in §7, no deductions of any kind may be made from the invoice amount. We are not obliged to accept bills of exchange. Should we do so, the contractual partner must pay the bank, discount and recovery charges.

§ 9 Exclusivity

The contractual partner shall not be entitled to sell goods delivered by us other than in the normal operation of its retail business. The contractual partner may not offer the goods delivered for sale close to dissimilar products. In particular, it may not sell our goods to persons or companies which are not end users. In the case of any breach of this prohibition, we shall be entitled to withdraw from the agreement and to demand the return of any goods delivered by us which are still in the possession of the contractual partner. In this case and at our request, the contractual partner must immediately send us a listing of these goods. Following this exercise of the right of withdrawal, the contractual partner may not sell any remaining goods, even where they were purchased under other agreements with us. The contractual partner must, however, compensate us for any damages arising as a result of this breach of the prohibition, being at least 20% of our sale price for the remaining goods.

§ 10 Reservation of title

The goods delivered remain our property until full payment is made of all amounts receivable by us from the contractual partner. The contractual partner shall be entitled to resell the goods in the course of its normal business. It hereby assigns to us, to the extent of the invoice sum, all its own claims to amounts receivable from third parties from resale of the goods. We hereby accept this assignation. Following this assignation, the contractual partner shall be authorised to collect the invoice sum receivable. We reserve the right to collect the invoice sum ourselves in the case where the contractual partner does not correctly fulfil its payment obligations and defaults on payment to us. The handling and processing of the goods by the contractual partner shall at all times be undertaken in our name and on our behalf. Where the goods are processed together with other items which do not belong to us, we shall acquire shared title to the new item in the proportion of the goods delivered by us to the other processed items. This shall also apply where the goods are mixed with other items not belonging to us. The contractual partner may not pledge the goods or transfer them as security to a third party.

The contractual partner shall be obliged to notify us immediately of any seizure of the goods by third parties. Where the contractual partner defaults on payment to us, it must immediately send us a precise listing of all the reserved title goods still in its possession. This shall also apply as soon as any application is made to open insolvency proceedings against the assets of the contractual partner. In this case, the contractual partner must send the corresponding listing immediately without waiting for a request from us. Where the contractual partner defaults on payment to us, we shall be entitled to revoke its authorisation to sell the reserved title goods it obtained from all transactions concluded with us. This authorisation shall expire automatically in the case of cessation of payment by the contractual partner or where an application is made to open insolvency proceedings against its assets. This revocation of the authority to sell the reserved title goods shall not constitute a withdrawal from the agreement. Where, exceptionally, foreign law is applicable to the contractual relationship between the parties and where this law does not permit the reservation of title but does provide for the reservation of other rights by the vendor, we shall be entitled to exercise all rights of this nature. The contractual partner shall be obliged to cooperate with any action we wish to undertake to protect our property or, in lieu thereof, to protect any other right to the items delivered.

§ 11 Data protection

Where the order is placed online/ via the Internet, the contractual partner shall be fully informed by us of the nature, scope, location and purpose of the collection, processing and use of the personal data required for the completion of orders and registration in our e-mail notification service (see button labelled ‘Privacy and data protection’). The contractual partner hereby expressly agrees to this collection, processing and use of personal data.

§ 12 Limitations of liability

In the case of contractual breaches resulting from ordinary negligence, our liability shall be limited to the typical, foreseeable, average and direct contractual damages for this type of goods. This shall also apply in the case of contractual breaches resulting from the ordinary negligence of our legal representatives or vicarious agents. In the case of breaches of minor contractual obligations resulting from ordinary negligence, we shall not be liable towards companies. The above limitations of liability shall not affect the rights of the contractual partner in relation to product liability. Furthermore, the limitations of liability shall not apply in the case of injury to body or health or loss of life of the contractual partner where attributable to us. The right of the contractual partner to claim damages as a result of a fault shall expire one year after delivery of the goods. This shall not, however, apply should we be found to have acted maliciously.

§ 13 Final provisions

This agreement shall be subject to the law of the Federal Republic of Germany. The provisions of the UN Convention on the International Sale of Goods shall not apply. Where the contractual partner is a merchant, legal entity under public law or a special fund under public law, the sole place of jurisdiction for all disputes arising from this agreement shall be our registered office. This shall also apply where the contractual partner has no general place of jurisdiction in Germany or where its domicile or usual place of residence at the time of the assertion of any complaint are not known. Should any individual provisions of the agreement with the contractual partner including these general terms and conditions be or become wholly or partially invalid, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision should be replaced by another whose economic purpose is as close as possible to that of the invalid provision. This translation of the german General Business Terms and Conditions of OSKA Textilvertriebs GmbH is furnished for convenience only. The original German text, which is on the back side, is binding and prevails in case of any variance between the German text and the English translation.