§ 1 Conclusion of contract and content of contract
- Stitchy GmbH & Co.KG delivers to entrepreneurs exclusively on the basis of the following general terms and conditions.
- This also applies to all future orders, in particular verbal orders, without having to expressly refer to the General Terms and Conditions again. We hereby object to any deviating terms and conditions of purchase. These only become part of the contract with written consent. Oral promises and/or other written additions to the offers require our express written confirmation in order to be effective. Transmission by fax is sufficient to comply with the written form; otherwise, transmission by telecommunication, in particular by e-mail, is not sufficient.
- Our terms of contract also apply if we carry out our delivery in the knowledge of conflicting terms or terms that deviate from our terms of contract. Even if we refer to a letter that contains or refers to the terms and conditions of the supplier or a third party, this does not constitute consent to the validity of those terms and conditions.
- If you cancel the order after the order has been placed, we are entitled to assert a claim for damages in the amount of 30% of the net sales value. In the case of partial order cancellations, this claim for damages relates to the canceled partial quantity. We reserve the right to assert further damages.
- Representatives, agents or other agents commissioned by us have no power of attorney. This applies in particular to payment terms and discount regulations, delivery dates and discounts. These must be confirmed by us in writing in any case.
- Information from us on the subject of the delivery or service (e.g. weights, dimensions, utility values, resilience, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately relevant, unless the usability for the contractually intended purpose means that the delivery or service exactly matches. Customary deviations and deviations that occur due to legal regulations. They are not guaranteed quality features, but represent descriptions or markings or technical improvements, and the replacement of materials with equivalent materials is permitted provided that it does not impair the usability for the contractually intended purpose.
- Stitchy GmbH & Co.KG retains ownership and copyright to all of the offers and cost estimates it has submitted, as well as to the drawings, illustrations, calculations, brochures, catalogues, models and other documents and aids made available to the customer. Without our express consent, you may not make these items accessible to third parties, disclose them, use them yourself or have them used by third parties or reproduce them. At our request, you must return these items to us in full and destroy any copies that may have been made if you no longer need them in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 2 Deliveries and Delivery Dates
- Ordered goods are delivered by handing them over to the carrier or forwarding agent (passing of risk). The place of performance for all deliveries is therefore Aschaffenburg. We reserve the right to choose the carrier or forwarding agent. Delivery is at your expense and risk. It will be delivered either freight collect or against calculation of the posted postage or freight costs.
- The delivery is not insured by us. We will only insure the delivery against theft and/or breakage and/or transport and/or fire and/or water damage and/or other insurable risks at your expense if you expressly request it and have it confirmed by us in writing.
- Partial deliveries are permitted. The simultaneous delivery of individual models takes place on the basis of an express written assurance in this regard. Excess or short deliveries customary in the industry are permissible.
- Periods and dates for deliveries and services promised by us are always only approximate, unless a fixed period or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
- The buyer and Stitchy GmbH & Co.KG agree that delivery periods are not fixed periods, but are only to be understood as approximate. If Stitchy GmbH & Co.KG exceeds this approximate period, the parties agree that Stitchy GmbH & Co.KG is entitled to deliver the goods within 12 days after the approximate delivery period has expired.
- The buyer and Stitchy GmbH & Co.KG also agree that after the 12 days mentioned above, the buyer is only entitled to withdraw from the contract if he has set us a reasonable subsequent delivery period in writing and we have not delivered by the end of this reasonable period.
- Stitchy GmbH & Co.KG can - without prejudice to our rights arising from default - demand an extension of delivery and service periods or a postponement of delivery and service dates by the period if you do not meet your contractual obligations towards us.
- We are not liable for the impossibility of delivery or for delays in delivery, insofar as this due to force majeure or other events that are not predictable at the time of the conclusion of the contract (e.g. operational disorders of all kinds, difficulties in material or energy creation, transport delays, strikes, rightful locks, lack of workforce, energy or raw materials, difficulties in the procurement of necessary authorities, or the authorities, or that Do not have to be relevant, not correct or not timely delivery by suppliers) that we are not responsible. If such events of Stitchy GmbH & Co.KG make the delivery or service significantly more difficult or impossible and the hindrance is not only of a temporary nature, we are entitled to withdraw from the contract. In the event of hindrances of a temporary duration, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If you cannot reasonably be expected to accept the delivery or service as a result of the delay, you can withdraw from the contract by immediately informing us in writing.
- If we are in default with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability for damages is limited in accordance with Section 5 of our general terms and conditions.
- The risk is transferred to you at the latest when the delivery item is handed over (whereby the beginning of the loading process is decisive) to the forwarding agent, carrier or other third party responsible for carrying out the shipment. This also applies if partial deliveries are made or if we have taken on other services, including shipping. If the dispatch or the handover is delayed as a result of a circumstance for which you are responsible, the risk passes to you from the day on which the delivery item is ready for dispatch and we have notified you of this.
- The mode of dispatch and the packaging are subject to the dutiful discretion of Stitchy GmbH & Co.KG.
- You shall bear any storage costs after the transfer of risk. In the case of storage by us, the storage costs amount to 0.25% of the invoice amount for the delivery items to be stored for each completed week. We reserve the right to assert and provide evidence of additional or lower storage costs.
§ 3 Payments
- Payment is made by invoice, in advance by bank transfer or by direct debit. We reserve the right to exclude individual payment methods.
- Payment against invoice: The seller's invoices are due for payment no later than 30 days after the invoice date without any discount deduction. If payment is made within ten days of the invoice date, we grant a 4% discount (unless otherwise agreed). In the case of bank transfer, the day of payment is the credit entry in the seller's bank; in the case of payment by cheque, the irrevocable value date of the check amount on the seller's account. Checks are only accepted as payment. Bills of exchange will only be accepted as payment after prior express written agreement. Any bill of exchange discount and encashment charges shall be borne by the buyer. Discount deduction is not permitted if the buyer is in arrears with the settlement of older claims from other deliveries.
- If the buyer exceeds the 30-day payment period, even for just one of several invoices, all other invoices are due for payment immediately. We are entitled to charge you interest on arrears at a rate of 8 percentage points above the base interest rate of the ECB. Any further damage incurred by us remains unaffected by this.
- Offsetting by the buyer with any counterclaims is not permitted unless these have been legally established or acknowledged by us in writing. You can only assert a right of retention if your claim is based on the same contractual relationship and the same delivery.
- Payment in advance: In the case of payment in advance, we give the buyer the bank details in the PREPAYMENT invoice. The invoice amount is to be transferred to our account within 7 days. The ordered goods remain reserved for the buyer until receipt of payment, but no longer than 21 days after the invoice date. If payment in advance is not received within a maximum of 21 days, we are entitled to cancel the order and to charge you for damages of 30% of the net value of the goods.
- Your obligation to pay compensation for goods that have not been delivered due to late payment: If you are in arrears with the payment of an invoice, we are entitled to sell the goods that have not yet been delivered to someone else and to demand compensation of 30% of the net sales price. Any further claims for damages that we may have remain unaffected by this; this also applies to the further assertion of the previous freight costs and freight costs incurred by us.
- Our representatives and agents are not authorized to collect or similar, unless there is an express written authorization. Payments made by you to our representatives and agents without written authorization from us do not discharge our debts.
- In collaboration with Klarna Bank AB (publ) , Sveavägen 46, 111 34 Stockholm, Sweden, we offer the following payment options. Payment is made to Klarna in each case:
- Invoice: The payment period is 14 days from the dispatch of the goods. You can find the billing conditions .
- Installment purchase: With Klarna's financing service, you can flexibly pay for your purchase in monthly installments of at least 1/24 of the total amount (but at least EUR 6.95) or under the conditions otherwise specified in the checkout. The installment payment is due at the end of the month after Klarna has sent a monthly invoice. For more information on installment purchase including terms and conditions and standard European consumer credit information see .
- Sofortüberweisung: Your account will be debited immediately after you have placed your order.
- Direct debit: The debit takes place after the goods have been shipped. You will be informed of the time by email. For more information see .
- Credit card (Visa/Mastercard): Available in Germany. The debit takes place after the goods or tickets have been shipped / the service is available or, in the case of a subscription, according to the communicated times.
§ 4 Warranty
- The warranty period is one year from delivery or, if acceptance is required, from acceptance.
- The delivered items are to be carefully examined immediately after delivery to you or to the third party specified by you. They are deemed to have been approved if you do not notify us in writing of the defects with regard to obvious defects or other defects that were recognizable during an immediate, careful examination, within seven working days after delivery of the delivery item or otherwise within seven working days after discovery of the defect or any earlier point in time at which the defect was recognizable to you during normal use of the delivery item without closer examination. At our request, the delivery item complained about must be returned to us carriage paid. If the notice of defects is justified, we will reimburse the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a location other than the place of intended use.
- In the event of material defects in the delivered items, we are initially obliged and entitled to choose between repairs or a replacement delivery within a reasonable period of time. In the event of failure, ie impossibility, unreasonableness, refusal or unreasonable delay in rectification or replacement delivery, you can withdraw from the contract or reduce the purchase price appropriately. There is no further liability on our part, with the exception of our liability in accordance with Section 5 of these conditions.
- If a defect is due to our fault, you can demand damages under the conditions specified in § 5.
- In the event of defects in article components from other manufacturers that we cannot remedy for licensing or factual reasons, we will, at our discretion, assert the warranty claims against the manufacturers and suppliers for your account or assign them to you. Warranty claims against Stitchy GmbH & Co.KG for such defects only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the statute of limitations for the relevant warranty claims from you against us is suspended.
- Our warranty does not apply if you change the delivery item or have it changed by a third party without our consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, you must bear the additional costs of remedying the defect arising from the change.
- A delivery of used items agreed with you in individual cases takes place with the exclusion of any warranty for material defects.
- You cannot complain about customary or minor, technically unavoidable deviations in quality, color, equipment, equipment, fit or design, as well as minor changes in fashion and they do not constitute a defect. We also reserve the right to make changes at any time that serve to improve quality, deviating from the sales sample. This applies in particular to the processing and the material composition.
§ 5 Liability of Stitchy GmbH & Co.KG
- The liability of Stitchy GmbH & Co.KG for damages, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tortious acts, insofar as fault is involved, is limited in accordance with this § 5.
- We are not liable in the event of simple negligence on the part of our organs, legal representatives, employees or other vicarious agents unless there is a breach of essential contractual obligations. Essential to the contract are the obligation to deliver the delivery item in good time that is free of significant defects, as well as advice, protection and care obligations that are intended to enable you to use the delivery item in accordance with the contract or to protect the life and limb of personnel or to protect your property from significant damage.
- Insofar as we are fundamentally liable for damages, this liability is limited to damage that we foreseen as a possible consequence of a breach of contract or that we should have foreseen if we had exercised due diligence. In addition, indirect damage and consequential damage resulting from defects in the delivery item can only be compensated insofar as such damage is typically to be expected when the delivery item is used as intended.
- In the event of liability for simple negligence, our obligation to compensate for property damage and the resulting further financial losses is limited to an amount of € 2,000,000 (in words: two million euros) per claim, even if it is a matter of a breach of essential contractual obligations.
- The above exclusions and limitations of liability apply to the same extent in favor of our organs, legal representatives, employees and other vicarious agents.
- Insofar as we provide technical information or have acted in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and to the exclusion of any liability.
- The limitations of this § 5 do not apply to our liability due to intentional behavior, for guaranteed quality features, due to injury to life, limb or health or under the Product Liability Act.
§ 6 Retention of title security
- The retention of title agreed below serves to secure all current and future claims of Stitchy GmbH & Co.KG against you from the supply relationship between us for corresponding articles, including any balance claims from a current account relationship limited to this supply relationship.
- The goods delivered to you by us remain our property until all secured claims have been paid in full. The goods and the goods covered by the retention of title that take their place according to this clause are referred to below as reserved goods.
- You store the reserved goods for us free of charge.
- You are entitled to process and sell the reserved goods in the ordinary course of business until the event of enforcement occurs. Pledges and assignments as security are not permitted.
- If the goods subject to retention of title are processed by you, it is agreed that the processing is carried out in the name and for the account of Stitchy GmbH & Co.KG as the manufacturer and that we directly acquire ownership or - if the processing is carried out from materials from several owners or the value of the processed item is higher than the value of the goods subject to retention of title - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership should occur with us, you already transfer your future ownership or - in the above ratio - co-ownership of the newly created item to us as security. If the goods subject to retention of title are combined with other items to form a single item or are inseparably mixed and one of the other items is to be regarded as the main item, we shall transfer to you, insofar as the main item belongs to us, proportionate co-ownership of the uniform item in the ratio specified in sentence 1.
- In the event of the resale of the reserved goods, you assign the resulting claim against the purchaser to us as a security - in the case of co-ownership by us of the reserved goods proportionately according to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims from tort in the event of loss or destruction. We authorize you with the right of revocation at any time to collect the claims assigned to us in your own name.
- If third parties access the goods subject to retention of title, in particular through seizure, you will immediately inform the third party of our ownership and inform us of this in order to enable them to enforce our property rights. If the third party is not able to reimburse us for the court or out-of-court costs incurred in this context, you are liable to us for this.
- We will release the goods subject to retention of title as well as the items or claims taking their place upon request, at your option, insofar as their value exceeds the amount of the secured claims by more than 50%.
- If we withdraw from the contract in the event of breach of contract by you - in particular default in payment - (case of enforcement), we are entitled to demand the return of the goods subject to retention of title.
§ 7 Intellectual Property Rights
- In accordance with this § 7, Stitchy GmbH & Co.KG guarantees that the delivery item is free of industrial property rights or copyrights of third parties. Each contractual partner shall inform the other contractual partner immediately in writing if claims are asserted against him due to the infringement of such rights.
- In the event that the delivery item infringes an industrial property right or copyright of a third party, we will, at our option and at our expense, modify or replace the delivery item in such a way that third-party rights are no longer violated, but the delivery item continues to fulfill the contractually agreed functions, or provide you with the right of use by concluding a license agreement. If we are not able to do this within a reasonable period of time, you are entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by you are subject to the restrictions of Section 5 of these general terms and conditions.
- In the event of infringements of rights by articles from other manufacturers supplied by us, we will, at our discretion, assert claims against the manufacturers and upstream suppliers for your account or assign them to you. Claims against us in these cases only exist in accordance with this § 7 if the judicial enforcement of the aforementioned claims against the manufacturer and sub-supplier was unsuccessful or is futile, for example due to insolvency.
§ 8 Sales Conditions
- The buyer is obliged to sell the goods delivered by the seller to his recipient only on the premises and at the address specified on the order. The transfer of goods to resellers is prohibited. You are liable to us for any damage that we may incur if Stitchy GmbH & Co.KG is made liable for compensation due to reasons of exclusivity or the like as a result of the unauthorized transfer of goods to third parties.
- The buyer undertakes to pay us a contractual penalty in the amount of € 20,000.00 for each case of a breach of these aforementioned sales conditions (§ 8 No. 1). The assertion of further damage remains unaffected by this.
§ 9 data protection
- The buyer acknowledges that the seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) to the extent necessary for the fulfillment of the contract.
§ 10 Miscellaneous
- The place of performance and fulfillment for all contractual obligations between the parties is Mainz.
- German law applies exclusively. For sales contracts with foreign buyers, the seller reserves the right to appeal to the court of residence of the foreign buyer and to apply the law applicable there.
- The exclusive place of jurisdiction is Mainz, provided such a place of jurisdiction agreement is permissible.
- The possible ineffectiveness of individual provisions of these terms and conditions does not affect the effectiveness of the remaining provisions. The relevant provisions of the Standard Terms and Conditions of the German Clothing Industry in their latest version shall apply in place of any invalid provision, supplementing the statutory provisions taking into account the presumed will of the parties.