General Sales and Delivery Conditions of Flex Knits Factories Inc. and Accord Knits SA
Sec. 1 Scope
- Deliveries and services of Flex Knit Factories Inc (“Flexknit”) are exclusively carried out according to the following conditions, provided that they have not been modified through an express written agreement between the contractual parties. These General Sales and Delivery Conditions shall also apply for all future deliveries, services, and offers, even if they are not explicitly agreed upon again.
- Business terms and conditions of the contractual partner that are not expressly recognized by Flexknit shall not be valid, even if Flexknit does not explicitly contradict their validity on a case-by-case basis. Even if Flexknit refers to a letter by the contractual partner that contains business terms and conditions of the contractual partner or refers to such business terms and conditions, this shall not constitute any agreement with the validity of such business terms and conditions.
Sec. 2 Conclusion of Contract, General Provisions
- All offers by Flexknit shall be non-binding, unless they have been expressly designated as binding or contain a certain acceptance period. Flexknit can accept purchase orders or orders within fourteen (14) days after the offer is received.
- The agreement concluded in writing—including these General Sales and Delivery Conditions—shall be solely applicable for the legal relationships between Flexknit and the contractual partner. It reflects all of the arrangements made between the contractual parties in their entirety. Verbal commitments by Flexknit before concluding the agreement shall be legally non-binding. Verbal agreements by the contractual parties shall be replaced by the agreement concluded in writing, unless it ensues expressly from them that they are to continue to be binding. The contractual parties shall individually confirm any verbal agreements in writing without delay.
- Purchase orders shall not become binding until we confirm the order.
- Changes and amendments to the agreement concluded between the contractual parties must be in writing to be effective.
- The specifications and illustrations contained in brochures and catalogs are customary approximate values, unless we have labeled them as binding or if usefulness for the contractually specified purpose clearly presupposes precise conformity. In each instance, they shall not be regarded as guaranteed characteristics. Customary deviations, deviations due to legal regulations, and deviations involving a technical improvement shall be admissible, along with the substitution of yarns by equivalent yarns, provided that such a substitution does not impair usefulness for the contractually specified purpose.
Sec. 3 Drawings and Descriptions
Flexknit reserves the ownership of or copyright to all offers and cost estimates issued and all drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids provided to the contractual partner by Flexknit. The contractual partner shall not be permitted to make the content of such items accessible to third parties, disclose them, make use of them directly or through third parties, or duplicate them without express written approval by Flexknit. When requested by Flexknit, the contractual partner must return these items to Flexknit in their entirety and destroy any copies made that it no longer needs in the proper course of business or if negotiations do not result in the conclusion of an agreement.
Sec. 4 Samples and Means of Production
- Unless otherwise agreed upon, the manufacturing costs for samples (including templates, molds, adornments, accessories, additions, etc.) shall be invoiced separately from the goods being supplied according to the agreement.
- If the contractual partner suspends or terminates the collaboration during the time that the samples are being produced, it shall be responsible for bearing all manufacturing costs incurred.
Sec. 5 Prices, Payment Conditions
- Unless otherwise specified in the offer or the sales price list and unless otherwise agreed upon in writing, the prices specified by Flexknit shall be understood as being in the displayed currency and without packaging, freight, postage, customs, and insurance. The prices shall be valid for the scope of services and deliveries listed in the order confirmation. Additional or special services shall be billed separately.
- Unless otherwise agreed upon, all invoices shall be due for payment within thirty (30) days net as of the invoice date.
- If Flexknit has indisputably delivered partially defective goods, the contractual partner shall nevertheless be required to pay for the defect-free portion, unless the partial delivery is not of any objectively comprehensible interest for the contractual partner. Moreover, the contractual partner shall only be permitted to offset with counterclaims if these have been recognized by declaratory judgment or are uncontested.
- If the payment deadline is exceeded, Flexknit shall have the right to charge default interest amounting to the rate that the bank keeping the account charges Flexknit for current account credits. The assertion of additional default damages shall not be affected by this.
- In the event of default, Flexknit shall be permitted to suspend the contractual services after issuing a written notification to the contractual partner until it has received the payments.
- Bills of exchange and checks will only be accepted by arrangement, only on account of performance, and only on condition of their being bankable. Discount charges will be billed as of the day that the invoiced amounts come due. A guarantee for the timely submission of bills of exchange and checks and for protesting bills of exchange shall be excluded.
- If, after the agreement is concluded, it becomes evident that Flexknit’s payment claim is in jeopardy due to a lack of the contractual partner’s ability to pay, then Flexknit shall have the right to refuse to provide the service and set a reasonable deadline for the contractual partner in which the latter is required to pay for the delivery pari passu or to provide a security. If the contractual partner refuses this or if the deadline passes to no avail, then Flexknit shall have the right to withdraw from the agreement and demand compensation for damages.
Sec. 6 Delivery
- Unless otherwise agreed upon, Flexknit shall deliver “FOB” Definitive for compliance with the delivery date or the delivery period shall be the announcement by Flexknit of its readiness for shipping or collection.
- The delivery period shall begin once the order confirmation is sent by Flexknit and shall be extended accordingly if the conditions listed in sec. 12 apply.
- Partial deliveries shall be admissible to a reasonable extent, insofar as the partial delivery can be used by the contractual partner within the framework of the contractual purpose and if delivery of the rest of the ordered goods is ensured. Individual partial deliveries will be invoiced separately.
- Variance between the packing list and the delivered quantity have to be reproved directly to Flexknit within 14 days. The reproval hast to be sent together with photos and detailed info about the package on firstname.lastname@example.org . After the given deadline, claims can not be made anymore regarding an incomplete shipment. § 377 HGB stays unaffected.
Sec. 7 Shipping and Transfer of Risk
- Goods that have been announced as available for shipping must be attended to immediately by the contractual partner. Otherwise, Flexknit shall have the right to ship them at its own discretion or store them at the expense and risk of the customer. In case of storage by Flexknit, the storage costs shall be 0.25% of the invoice amount of the delivery items being stored for each full week. Flexknit reserves the right to assert actual storage costs that are higher.
- If no special arrangement has been made, Flexknit shall select the means of transport, the transport route, and the packaging.
Once the goods have been handed over to the forwarding agent, or the carrier, or once they have been put into storage—but in any case no later than when they leave the factory or warehouse—the risk for them shall be transferred to the contractual partner. Flexknit shall only
- conclude insurance against theft and damage from breakage, transport, fire, and water or other insurable risks at the express wish and at the expense of the contractual partner.
Sec. 8 Delay in Delivery
- If the delivery is delayed due to one of the situations listed in sec. 12 below or because of the action or omission of the contractual partner, then an extension of the delivery period that is appropriate for the circumstances shall be granted.
- The contractual partner shall only be entitled to withdraw from the agreement if Flexknit is responsible for not complying with the delivery period and if the contractual partner has set a reasonable grace period for Flexknit to no avail.
Sec. 9 Retention of Title
- Flexknit shall retain the title to the goods delivered (also: “Reserved Goods”) until all payment claims arising from the business relationship with the contractual partner have been met.
- The contractual partner shall be entitled to process and sell these goods in the proper course of business, provided that it fulfills its obligations arising from the business relationship with Flexknit in a timely manner. However, it shall not be permitted to pledge or collateralize the Reserved Goods. It shall be obligated to protect Flexknit’s rights in the case of credited resale of the Reserved Goods.
- In the event of breaches of duty on the part of the contractual partner, particularly payment default, Flexknit shall be entitled to withdraw and take back the Reserved Goods after a reasonable payment deadline set for the contractual partner has elapsed to no avail; the contractual provisions concerning the dispensability of setting a deadline shall not be affected by this. In this case, the contractual partner shall be obligated to surrender the Reserved Goods. Moreover, Flexknit shall have the right to withdraw from the agreement if an application to open insolvency proceedings regarding the assets of the contractual partner has been filed.
- At this time already, the contractual partner assigns Flexknit as security all receivables and rights arising from the sale of goods to which Flexknit has ownership rights. Flexknit hereby accepts the assignment. Flexknit revocably authorizes the contractual partner to collect the receivables assigned to Flexknit under its own name. Flexknit shall only be permitted to revoke this authorization in the event of enforcement.
- The contractual partner must always undertake any processing or machining of the Reserved Goods on behalf of Flexknit. If the Reserved Goods are processed or inseparably mixed together with other items that do not belong to Flexknit, then Flexknit shall acquire co-ownership of the new item in the ratio of the Reserved Goods’ invoice value to the other processed or mixed-in items at the time they were processed or mixed together. If Flexknit goods are combined or inseparably mixed together with other movable items to form one single product, and if the other product is to be regarded as the main one, then the contractual partner shall transfer proportionate co-ownership to Flexknit to the extent that the product is the property of the contractual partner. The contractual partner shall safeguard the ownership or co-ownership for Flexknit. Otherwise, the same shall apply for products brought about by processing, combining, or mixing as for Reserved Goods.
- The contractual partner must immediately inform Flexknit of third-party enforcement measures against the Reserved Goods, receivables assigned to Flexknit, or other securities, and immediately hand over any documents needed for taking intervening measures. This shall also apply for impairments of any kind.
- If the value of the existing securities exceeds the secured receivables by more than thirty percent (30%), then Flexknit shall be obligated to release securities at Flexknit’s discretion in this respect upon request by the contractual partner.
Sec. 10 Material Defects
The quality of the goods shall be exclusively based on the agreed-upon technical delivery specifications. If Flexknit is required to deliver the goods according to the contractual
- Partner’s drawings, specifications, samples, etc., then the latter shall assume the risk of their suitability for the specified purpose. Decisive for the contractual condition of the goods shall be the time of the transfer of risk according to sec. 8 (2).
- Flexknit shall not be responsible for material damages due to inappropriate or improper use by the contractual partner or third parties, normal wear and tear, incorrect or negligent handling, or for the consequences of improper modifications or maintenance work performed by the contractual partner or third parties without the consent of Flexknit. The same shall apply for defects that only reduce the value or suitability of the goods by an insignificant amount.
- In case nothing else is agreed, the claims for material defects become time-barred one year after the shipment. The legal special provisions for the final shipment of the unprocessed goods to the customer stay unaffected in any case, even when they are finished (Delivery Regress according to §§ 478f.BGB
- Unless something else has been arranged, material damage claims shall become time-barred after one year has elapsed since the delivery.
- If acceptance of the goods or a first-sample test has been arranged, then complaints regarding defects that the contractual partner could have discovered through a careful acceptance inspection or first-sample test shall be excluded. Otherwise, the delivered items must be inspected carefully following delivery to the contractual partner or the third party it has appointed. They shall be regarded as accepted and approved if Flexknit has not received a written defect complaint regarding obvious defects or other defects that were evident from an immediate, careful examination within seven (7) working days following delivery of the delivery item or otherwise within seven (7) work days after the defect was discovered or any earlier point in time when the defect was recognizable to the contractual partner during normal use of the delivery item without a closer examination.
- Flexknit must be given an opportunity to identify the claimed defects. Rejected goods shall be returned to Flexknit immediately upon request by Flexknit; we will assume the transport costs if the defect complaint is justified. If the contractual partner does not fulfill these obligations, or if it makes changes to the goods it has already rejected without the approval of Flexknit, thereby making it impossible or unreasonably difficult to remedy the defect, then the contractual partner shall forfeit any material damage claims. In any case, the contractual partner shall be responsible for bearing the additional costs for remedying the defects that are brought about by any changes.
- In the event of a justified, timely defect complaint, Flexknit shall repair the rejected goods or supply a flawless replacement at its discretion.
- If Flexknit does not meet these obligations at all or not within a reasonable time according to the contract, then the contractual partner shall be entitled to set a final deadline for Flexknit in writing by which time Flexknit is to have met its obligations. If this deadline elapses to no avail, then the contractual party shall have the right to demand a reduction in price, withdraw from the agreement, or undertake the necessary repair itself or have it done by a third party at the expense and risk of Flexknit. A reimbursement of costs shall be excluded if the expenses increase because the goods have been brought to another location following delivery, unless this corresponds to the intended use of the goods.
- The contractual partner shall only have legal recourse claims against Flexknit to the extent that the contractual partner has not made any arrangements with its customer that go beyond the legal amounts for damage claims. Furthermore, the regulations arranged below in sec. 11 shall apply accordingly for the scope of the recourse claims.
Sec. 11 Other Claims, Liability
- Unless otherwise arranged below, any other additional claims against Flexknit by the contractual partner shall be excluded. This shall apply in particular for damage claims due to breach of duties arising from the contractual obligation and from unlawful acts. Flexknit therefore shall not be liable for damages that have not occurred directly on the delivered goods themselves. Above all, Flexknit shall not be liable for loss of profits or other financial losses on the part of the contractual partner.
- The above-mentioned liability restrictions shall not apply in cases of intent, gross negligence by the legal representatives or executives of Flexknit, or a culpable violation of major obligations (essential contractual obligations that shape the contractual obligation concerned and on the observation of which the contractual partner may rely on and regularly relies). In the event of a culpable violation of major obligations, Flexknit shall only be liable for reasonably foreseeable damages that are typical of this type of contract—except in cases of intent or gross negligence by its legal representatives or executives.
- Furthermore, the liability restriction shall not apply in cases in which liability is based on the German Product Liability Act. Nor shall it apply for injury to life, limb, or health or due to the lack of promised features—if and to the extent that the specific purpose of the features promised was to protect the partner from damages not occurring on the delivered goods themselves.
- Insofar as Flexknit’s liability is excluded or limited, this shall also apply for the personal liability of its staff, employees, workers, legal representatives, and vicarious agents.
- The legal regulations concerning the burden of proof shall not be affected by this.
Sec. 12 Force Majeure
Force majeure, labor disputes, unrest, official measures, the failure of suppliers to make deliveries, and other unforeseeable, unavoidable, and serious events shall release the contractual parties from their contractual obligations for the duration of the disruption and to the extent of their effect on the contractual services. This shall also apply if these events occur at a point in time in which the contractual party concerned is already in default, unless it has brought about the default intentionally or through gross negligence. The contractual parties shall be obligated to provide the necessary information without delay to the extent that is reasonably possible and to adapt their obligations to the changed circumstances in good faith.
Sec. 13 Place of Fulfillment, Place of Jurisdiction, and Applicable Law
- For all legal disputes, the Republic of Mauritius shall be the exclusive place of jurisdiction.