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General Terms and Conditions
Terms of Delivery and Payment of JACKY Baby- und Kindermoden GmbH

§ 1 Scope of Application

  1. Our Terms of Delivery and Payment (GTC) apply exclusively. We do not recognise any terms and conditions of the customer that conflict with or deviate from our GTC, unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we carry out the delivery to the customer without reservation, whilst being aware of the customer’s terms and conditions that conflict with or deviate from our own.
  2. Our GTC apply not only to the contract for which they were expressly agreed, but also to subsequent contracts and contracts concluded independently of the initial contract, even if these are not concluded using our respective order form.

§ 2 Offer, Conclusion of Contract

  1. On our order form or via our B2B web shop, the buyer submits a binding offer to conclude a contract of sale. Our sales representatives and staff who take the order from the customer are not authorised to accept the offer. The offer is deemed to have been accepted if we have not declared our rejection within a period of 4 weeks from the date of the order.
  2. All verbal agreements, in particular those made by telephone, including ancillary and supplementary agreements, and those relating to the fulfilment of the order, require our separate written confirmation to be valid. Our silence in response to subsequent requests for amendments and/or additions shall be deemed a rejection. Our sales representatives are not authorised to enter into supplementary agreements or to accept requests for amendments.
  3. Should certain materials or designs not be supplied by our suppliers, or should the production of individual items be cancelled due to a low order volume, we are entitled to reduce the order accordingly. The buyer may not derive any claims from this.

§ 3 Payment

  1. Our prices are exclusive of statutory VAT and delivery costs ex-works Metzingen. Goods will only be insured at the express written request of the purchaser and always at the purchaser’s expense.
  2. Unless clause 5 applies, invoices are payable:

- within 10 days of the invoice date with a 2% discount;

- net from the 11th to the 30th day from the invoice date.

All payments must be made by bank transfer, free of charges, to our company’s registered office or to Süd-Factoring GmbH. The date on which the payment is credited to our account or theirs shall be decisive.

3.  In the event of payment after the due date or in the event of default, our rights shall be determined in accordance with Section 288 of the German Civil Code (BGB). The  rights set out in Section 8 below remain unaffected.

4.  For deliveries arising from orders placed by new customers, we are entitled to require payment in advance or cash on delivery.

5.  We are entitled to deliver only against payment in advance, cash on delivery or security if, after the conclusion of the contract, it becomes apparent that our claim to consideration is at risk due to the buyer’s inability to pay. This applies in particular – though not exclusively – in the following cases:

- one of the buyer’s banks terminates the credit facility or no longer permits withdrawals,

- a cheque or bill of exchange is protested against the buyer,

- the buyer becomes insolvent,

- an application is made to open insolvency proceedings in respect of the buyer’s assets, or

- Süd-Factoring GmbH does not grant or suspends the buyer’s trade credit limit.

§ 4 Delivery

  1. Delivery is ex-warehouse Metzingen. The buyer shall bear the delivery costs.
  2. We are entitled to deliver the goods in partial consignments in accordance with industry practice, without this constituting a defect or a breach of obligation.
  3. Unless otherwise agreed, goods shall be dispatched at the buyer’s expense in cartons by a carrier of our choice. Should the buyer request a different type of packaging or method of dispatch, the costs shall be borne in full by the buyer.
  4. The goods are dispatched uninsured, unless otherwise agreed. The danger and risk of transport shall pass to the buyer upon handover of the goods to the forwarding agent, carrier or any other party commissioned with the transport; a handover in this sense shall be deemed to have taken place if the buyer is in default of acceptance.
  5. We have our goods manufactured abroad. For this reason, a situation common in the industry may arise whereby not all goods ordered can be delivered to the buyer. This constitutes a normal characteristic of the goods and does not constitute a defect. The buyer cannot derive any rights from this, unless we deliver less than 80 per cent of the order volume.
  6. Upon expiry of the delivery period specified in the order, a grace period of 18 days shall commence – without prejudice to the following Section 8(1). Upon expiry of the grace period, the contract shall be deemed to have been rescinded, with no entitlement to claims for damages; the following Section 6(5) remains unaffected.
  7. Withdrawal from the contract pursuant to paragraph 6 above shall not take effect if, during the grace period, the buyer declares to us in writing that they insist on performance of the contract. However, we shall be released from our obligation to deliver if the buyer fails to respond to our written enquiry within the grace period as to whether they insist on performance of the contract.
  8. The timeliness of the delivery shall be determined exclusively by the date on which we hand over the goods to the carrier.
  9. We do not enter into fixed-date transactions.

§ 5 Exclusivity

No exclusivity is granted to the purchaser with regard to the location (e.g. in the sense of a non-competition agreement) or with regard to the form, design, colour or other characteristics of the goods, unless expressly agreed in writing. However, our sales representatives or field staff are under no circumstances authorised to enter into such an agreement.

§ 6 Warranty, Notices of Defects, Liability

  1. Any complaints must be notified to us in writing without delay. The written notification must be received by us no later than 10 days after the goods have been received by the buyer, or, in the case of hidden defects, 10 days after their discovery. The provisions of § 377 of the German Commercial Code (HGB) remain unaffected. Our sales representatives are not authorised to accept such notices of defects. The burden of proof for all elements of the claim lies with the buyer, including the date on which the defect was discovered and the timeliness of the notice of defect.
  2. We are only obliged to accept returns of goods for the purpose of inspecting defects if the buyer has given prior written notice of the return, stating the invoice number and the invoice date. Acceptance of returned goods shall under no circumstances constitute an acknowledgement of the buyer’s notices of defects.
  3. Warranty for defects in the goods shall initially be provided, at our discretion, by repair or replacement. In the event that such rectification fails, the buyer is entitled, at their discretion, to reduce the purchase price appropriately or to withdraw from the contract; however, in the case of only minor breaches of contract, in particular where defects are only minor, the buyer shall not be entitled to withdraw from the contract. The seller’s obligation to reimburse the buyer for costs incurred in connection with the subsequent performance remains unaffected. The following paragraphs 4 and 5 remain unaffected
  4. If, following a failure of subsequent performance, the buyer chooses to withdraw from the contract on the grounds of a defect, they shall – without prejudice to paragraph 5 below – have no further claims for damages in respect of that defect. If, following a failure of subsequent performance, the buyer opts for damages, the defective goods shall remain in their possession, insofar as this can reasonably be expected of them. In this case – again without prejudice to paragraph 5 below – the claim for damages shall be limited to the difference between the purchase price and the value of the defective goods, unless the breach of contract was caused by us through wilful misconduct.
  5. Claims for damages of any kind against us, in particular those based on tortious liability, are – unless they relate to damage to life, limb or health or a breach of fundamental contractual obligations – limited to gross negligence or wilful misconduct, including on the part of our legal representatives or vicarious agents. This also applies where the buyer asserts direct claims against our legal representatives or vicarious agents. The amount of the claim is limited to the typically foreseeable damage. We are therefore not liable for damage that has not occurred to the goods themselves, in particular for loss of profit or other financial losses suffered by the buyer, with the exception of expenses incurred by the buyer for the purpose of subsequent performance. This also applies to direct claims against our legal representatives or vicarious agents.
  6. Minor, commercially standard or technically unavoidable variations in the goods’ quality, colour, dimensions, weight, features or design form part of the goods’ normal characteristics and do not constitute a defect. Furthermore, only the manufacturer’s product description shall be deemed to have been agreed as the quality specification; public statements, promotional claims or advertising by the manufacturer do not, in addition, constitute a specification of quality. We do not provide any guarantees in the legal sense.
  7. Warranty claims by businesses become time-barred one year after delivery. This does not apply to the seller’s liability in the event of injury to life, limb or health, in cases of gross negligence or fraudulent conduct, or to recourse claims pursuant to Section 478(2) of the German Civil Code (BGB).

§ 7 Suspension of Delivery, Withdrawal

  1. In the event of force majeure, official measures or operational disruptions through no fault of our own which have lasted for more than one week or are expected to last for more than one week, the delivery or acceptance period shall be automatically extended by the duration of the hindrance, but by no more than 5 weeks plus the period required for subsequent delivery. The extension shall not apply if we fail to inform the buyer immediately of the cause of the hindrance as soon as it becomes apparent that the agreed deadlines cannot be met.
  2. If the hindrance has lasted for more than 5 weeks and the other party is not notified in writing without delay, upon written request, that delivery or acceptance will take place on time, the other party may withdraw from the contract immediately.
  3. If delivery or acceptance has not taken place on time, the other party may withdraw from the contract. However, before exercising the right of withdrawal, it must set a period of at least two weeks in writing.
  4. Claims for damages are excluded in the aforementioned cases, unless the interruption is caused intentionally or through gross negligence. Section 6(5) applies mutatis mutandis.
  5.  If, for reasons for which we are responsible, the service undertaken becomes impossible before the transfer of risk, the buyer may withdraw from the contract. In this case, any claim for damages is excluded; Section 6(4) and (5) remain unaffected.
  6. If the buyer defaults on payment of an invoice and fails to pay even after a reasonable deadline has been set, we are entitled to sell the goods not yet delivered to a third party and to claim damages amounting to 30 per cent of the sale price (excluding VAT). The buyer reserves the right to prove that we have incurred less damage or no damage at all.
  7. If the buyer refuses to fulfil the contract, or if they unjustifiably declare their withdrawal from the contract, or if the contract is not performed for any other reason attributable to the buyer, we are entitled to claim damages amounting to 30 per cent of the outstanding purchase price (excluding VAT). The buyer reserves the right to prove that the loss incurred was less or non-existent.
  8. We reserve the right to claim higher damages in the cases referred to in paragraphs 6 and 7.

§ 8 Late Payment

  1. We shall not be obliged to make any further deliveries under any current contract until due invoice amounts, including interest on late payment, have been settled. If payment is not made within 30 days of the invoice date, the delivery periods for all other current orders shall be extended, without the need for us to give notice, by the period from the 31st day after the invoice date until full payment has been received. If the buyer is in arrears with a payment due, we may, for outstanding deliveries under any current contract and with the payment term lapsing, demand payment in advance or the provision of a bank guarantee prior to delivery of the goods.
  2. In the event of late payment, the buyer shall bear any factoring fees incurred. This applies in particular in the event of the unauthorised withholding of due invoice amounts and where insolvency proceedings are initiated against the buyer’s assets.
  3. In the event of late payment, payment terms for goods already delivered shall cease to apply. The relevant invoices shall become due for payment immediately, with the discount entitlement lapsing.

§ 9 Set-off and Right of Retention

  1. The buyer may only set off against undisputed or legally established counter-claims.
  2. The same applies to a right of retention, provided that the buyer is a trader. If this is not the case, the buyer may only assert a right of retention if their counterclaim is based on the same contractual relationship.

§ 10 Retention of title

  1. We reserve title to the goods until all invoices arising from the business relationship with the buyer have been paid. Where we agree with the buyer that the purchase price is to be paid by means of a cheque-and-bill-of-exchange arrangement, this retention of title shall also extend to the buyer’s honouring of the bill of exchange accepted by us and shall not lapse upon the cheque received being credited to our account. In the event of the buyer’s default on payment, the seller is entitled to demand the return of the goods subject to retention of title without withdrawing from the contract and without the need to set a deadline. However, until the goods subject to retention of title are collected, the buyer remains entitled to avert this by making full payment of all outstanding invoices. Once the goods have been taken back, the seller is entitled to dispose of them on the open market in the manner customary in the trade. The proceeds of such disposal shall be set off against the buyer’s liabilities, subject to the further provisions of the following paragraph, less reasonable disposal costs.
  2. Should the seller assert its retention of title, it shall be entitled, at the buyer’s expense, to store its products separately, to mark them or to collect them, and to prohibit any disposal of the products. If the seller takes back the goods on the basis of the retention of title, the buyer is obliged to return them at his own expense; he shall be liable for any reduction in value, the costs of taking them back and the seller’s loss of profit. The buyer waives any claims arising from possession.
  3. The buyer is entitled to resell the goods in the ordinary course of business. The buyer hereby assigns to us – in the case of domestic transactions, including VAT – all claims amounting to the invoice value to which the buyer is entitled against its customers or third parties arising from the resale. We accept these assignments. The buyer remains authorised to collect the claim even after the assignment. Our right to collect the claim ourselves remains unaffected by this. However, we shall not collect the claim as long as the buyer meets their payment obligations from the proceeds received, is not in default of payment, has not suspended payments and has not filed for the opening of insolvency proceedings. Should this, however, be the case, we may demand that the buyer disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and notify the debtors of the assignment. 
  4. The buyer must inform the seller immediately of any enforcement measures taken by third parties against the goods subject to retention of title or the assigned claims, and must provide the documents necessary to lodge an objection.
  5. In the event of suspension of payments, the filing of an application for or the commencement of insolvency proceedings, or if the buyer agrees with its customers that the claim is non-assignable, the right to resell and to use the goods subject to retention of title, and the authorisation to collect the assigned claims, shall lapse; in the event of a cheque or bill of exchange being protested, the authorisation to collect the claims shall also lapse.

§ 11 Place of jurisdiction and place of performance

  1. The place of jurisdiction for both parties and for all mutual and future claims arising from the business relationship – including actions relating to cheques and bills of exchange – shall, at our discretion, be Stuttgart (the registered office of Süd-Factoring GmbH, with whom we work closely) or Bad Urach (if the buyer is a trader, has no general place of jurisdiction within Germany, or if, after the conclusion of the contract, the buyer transfers their place of residence, registered office or habitual residence outside the Federal Republic of Germany, or if their place of residence, registered office or habitual residence is unknown at the time the action is brought). We reserve the right, however, to bring proceedings against the buyer at their general place of jurisdiction.
  2. The place of performance for all contractual obligations of both parties is Metzingen if the buyer is a trader.

§ 12 Choice of Law

All transactions, including those involving cheques and bills of exchange, shall be governed exclusively by the law of the Federal Republic of Germany, including the commercial customs and technical practices applicable in Germany.

§ 13 Severability clause

Should any provision of our General Terms and Conditions be invalid or unenforceable, this shall not affect the validity of the contract or the remaining terms and conditions. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision that corresponds to its intended meaning.

                                                                                                                                                                                                                                                                                                                              As at 18 June 2012

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