General terms and conditions for German distributors
Wortmann Group general terms and conditions of sale and supply
Applicable in Germany and for the companies below with effect from 01.01.2014:
- Wortmann KG Internationale Schuhproduktionen
- MARCO TOZZI Shoes GmbH & Co. KG
- Novi International GmbH & Co. KG
- shoe.com GmbH & Co. KG
- Jana shoes GmbH & Co. KG
- Caprice Schuhproduktion GmbH & Co. KG
1. Applicability of our General Terms and Conditions of Sale and Supply
Our terms and conditions of sale and supply apply to contractual partners who have their headquarters in Germany. These terms and conditions apply exclusively; they apply equally to future transactions with the contractual partner. Any of the contractual partner's terms and conditions which differ from our terms and conditions of sale and supply are invalid.
Any of the contractual partner's terms and conditions which differ from our terms and conditions of sale and supply are thus invalid even if we do not expressly object to them or if we provide services to the contractual partner or accept services from the contractual partner without reservation. We are entitled to withdraw from the contract should the contractual party object to the validity of our General Terms and Conditions of Sale and Supply. The contractual partner's general terms and conditions of business are therefore invalid if they deviate from legal stipulations, regardless of the content of our own Terms and Conditions of Supply.
Changes to our General Terms and Conditions of Sale and Supply will be published on our website and contractual partners will be advised that changes have been made immediately in the next contract round. Our new General Terms and Conditions of Sale and Supply will be considered approved unless the contractual partner objects in writing. We will also advise the contractual partners of this consequence when communicating the change. The contractual partner must submit any objection to us within one month of receiving notification of the change.
Unless specified otherwise in the contract, all prices are ex works. All prices shown are net prices. The current mandatory Value Added Tax is charged separately.
3. Invoicing, payment, late payment, offsetting, right of retention, right to refuse performance
We are entitled to submit our invoices to our contractual partners in electronic form. Payment due dates and other payment terms are indicated on our invoices. After expiry of the due date for payment specified on our invoices, the contractual partner shall be liable, without separate reminder, for payment of 8 per cent above the basic annual rate of interest on the amount due, commencing on the day after the due date. In the case of payment arrears, we are entitled to provide evidence of and claim for greater damages. The contractual partner will be entitled to set off against its own claims only if its counter-claims have been legally ascertained, are awaiting judgement, are uncontested or are recognised by our company.
If the legal requirements are met, the contractual partner has unrestricted entitlement to put forward a pleas of non-fulfilment of the contract. The following apply to rights of retention: The contractual partner is entitled to rights of retention only in the case of undisputed, legally ascertained claims or claims that are awaiting judgement. Rights of retention may be asserted only to the extent and to the amount corresponding to the value of the counter-claim. We will be entitled to avert rights of retention by provision of a security which can also be made through a bank guarantee. The security shall be deemed to have been furnished at the latest at such time that the contractual partner defaults on accepting the security.
If after entering into a contract it becomes apparent that our receivables are jeopardised by the contractual partner's poor performance, we are entitled to assert a right to refuse performance with respect to supply of the goods or provision of the service and to demand payment in advance. This applies in particular if an application is made to start insolvency proceedings against the contractual partner or such proceedings are ongoing, the contractual partner falls into arrears with the payment of due payments in relation to other contractual relationships, bills of exchange or cheques presented are not paid, the limit set by a credit insurer is exceeded or would be exceeded with the scheduled delivery or performance or the contractual partner is refused credit insurance. The contractual partner is deemed to be in arrears with payment under other contracts if these contracts were agreed with other Wortmann group companies. The right to refuse performance expires when the contractual partner makes the payment or provides adequate security by means of a bank guarantee. We may set an appropriate deadline no longer than ten days in which the contractual partner must make payment or provide security. If this deadlines passes without success, we are entitled to withdraw from the contract and demand the payment of compensation.
4. Quality of the merchandise
Leather goods are natural products. Minor variations in colour and structure are typical indicators of natural hide and are not a fault. Footwear in fashion colours without a liner such as a leather liner or sock may fade due to the foot's natural heat and moisture. This is not a manufacturing fault and therefore not grounds for complaint.
5. Delivery, transfer of risk, delayed delivery
The delivery deadline is specified in the contract (order) or the order confirmation. No fixed delivery deadlines are agreed. Goods are supplied ex works. The delivery deadline is considered to have been met provided the goods leave us by the delivery date. We are permitted to deliver earlier than the agreed delivery time frame provided we notify the contractual partner of this prior to supply. We may make fair and reasonable are partial deliveries and invoice separately unless the contractual partner's particular interest in complete delivery is apparent.
The risk of accidental loss and accidental impairment transfers from our company to the contractual partner on surrender of the goods to the haulage contractor, freight carrier or any other person or establishment appointed to complete the shipment or where transport is by in-house employees, when the goods are passed to an employee. This applies equally where we are liable for the transport costs.
We are deemed to be late only if the contractual partner first allows a fair deadline for rectification of minimum 14 days unless we have intentionally and finally refused the service beforehand. The requirement that a deadline be set applies equally in the case of calendar-based determination of the delivery term in accordance with § 286 clause 2 points 1 and 2 of the German Civil Code. Only after this subsequent period has expired without success is the contractual partner entitled to withdraw from the contract and demand payment of compensation.
6. Force majeure, reservation of the availability of supplies and raw materials
If a delivery is delayed due to force majeure, due to insufficient supply of raw and auxiliary materials, due to the impossibility of obtaining means of transportation or as a consequence of industrial disputes, the delivery deadline is extended by the duration of the hindrance to performance plus a fair recovery period of minimum one week from rectification of the hindrance to performance. We shall inform the contractual partner immediately if we become aware of any such hindrance to performance. Should this delay endure for an unreasonable period, any of the parties to the contract is entitled to withdraw from the contract. This applies equally where supply is impossible for the reasons stated under Clause 1. We shall also advise the contractual partner that performance is impossible as soon as this is definitely established. No claims for compensation against us are admissible in such cases. If we have already received payment, this will be refunded without delay in the case of withdrawal.
Our obligation to supply is subject to correct and timely availability of supplies and raw materials. If this is not guaranteed, we are entitled to withdraw from the contract without obligation to make any compensation payment. If we have already received payment, we will also make an immediate refund in the case of withdraw for these reasons.
7. Liability for faults
Obvious faults must be reported to us in writing at the latest within 14 days of the date of delivery. The contractual partner must report concealed faults at the latest within 14 days of discovering them. Dispatch within the applicable notification period from receipt of the notification of defects/claim for defects is sufficient. If the notice of defects is not forthcoming or if it is late, the contractual partner shall forfeit its claims with respect to any merchandise faults. This does not apply if the fault is the result of our wilful or gross negligence. Any processing of a notification of fault on our part, in particular inspection of the goods after their return by the contractual partner under no circumstances constitutes failure by the contractual partner to comply with the obligation to giver notification of defects. In the case of a defect, we are initially entitled to elect to rectify the default or to provide a replacement free from defects (Subsequent performance, § 439 clause 1 of the German Civil Code). In the case of subsequent performance, we are obliged to bear the costs of all associated expenditure incurred, in particular transport, travel, labour and material costs provided these do not increase due to the goods being passed to a place other than the place of fulfilment.
The contractual partner has no claim to rectification of defects or subsequent performance where these would be possible only with disproportionately high costs; this is the case in particular when the expenditure associated with rectification is expected to exceed the amount of one hundred and fifty per cent of the market value of the merchandise or, in the case of subsequent performance, where the costs for us of purchasing a replacement exceed one hundred and fifty per cent of the market value of the merchandise. This does not affect the contractual partner's other rights (reduction, withdrawal, compensation). Should we fail to rectify the defect at the second attempt, or if we are not prepared or not in the position to rectify the defect, or if subsequent performance exceeds a fair deadline set by the contractual partner of minimum 14 days, the contractual partner is entitled to withdraw from the contract, claim a reduction against the purchase price, or demand the payment of compensation. During the main season from March to May and September to November of any given year, the deadline indicated in the previous clause extends to minimum 20 days where the contractual partner provides us with evidence in each individual case that such an extension to the deadline will not result in concrete, not insignificant disadvantages for him.
Any warranty is excluded if the merchandise has only minor defects. Minor defects are, in particular, only insignificant deviations from the contractually agreed quality, only insignificant impairment of the usability stipulated in the contract, natural caused after the transfer of risk by incorrect or negligent treatment, excessive demand or as the result of the use of unsuitable operating equipment or defects or damage occurring after the transfer of risk due to exceptional external influences not provided for in the contract. The contractual partner may demand compensation in place of delivery only where supply of the defective goods represents a significant breach of duty.
The warranty period is one year from delivery of the merchandise. Beyond the warranty regulation stated, we provide no guarantee of the quality of the merchandise we supply.
8. Special rules governing liability for lack of title.
We shall be liable to the legal extent for the products supplied being free from defects of legal title. We guarantee that the goods we supply are not in breach of third party industrial property rights or copyrights only in the country in which we are registered (Federal Republic of Germany), unless agreed otherwise. We accept no liability where the breach of such property rights is due to instructions issued by the contractual partner or insofar as the breach of rights is caused by unauthorised changes made to the goods or use of the goods by the contractual partner in a way which deviates from the contractual usage.
The contractual partner must advise us immediately if a third party claims a breach of rights. Failure to provide such information immediately will result in claims under warranty being excluded. The contractual partner must provide us with the necessary information and assistance which we require to effectively counter the third party's claims. With respect to the warranty period, the provisions of point 7 shall ultimately apply.
Should third parties make justified claims within the warranty period we may elect, at our cost, to obtain a right of use for the relevant deliveries or change the deliveries taking into account the contractual intended purpose such that there is no infringement of property rights or supply comparable goods which do not infringe the property rights. The following provisions of point 10 shall apply to any claims for compensation. The contractual partner may not make a warranty claim where
- the contractual partner himself is in negotiation with the third party and reaches agreements with the third party without our knowledge;
- the contractual partner has not advised us immediately of third party claims.
9. Liability within a supply chain
The contractual partner's rights pursuant to §§ 478, 479 of the German Civil Code, with the exception of the claim to compensation, remain unaffected by the provisions of these General Terms and Conditions of Supply when rightly used by contractual partner's customer, the final customer in the supply chain is a consumer and the defect was there at the time of the transfer of risk to the contractual partner. However we accept no liability pursuant to §§ 478, 479 of the German Civil Code if our customer has supplied abroad and thus excluded the application of the UN convention on the international sale of goods.
10. Liability for the payment of compensation
Our liability for the payment of compensation is limited to gross and wilful negligence on our part. This applies equally to any breach of duty on the part of our legal representatives and fulfilment agents. In the case of simple negligence we are liable only in the case of breach of major contractual obligations; the amount of any claim for compensation is in this case limited to replacement compensation for typically foreseeable damage.
This limits on liability do not apply to claims with respect to injury to life, body or health. These regulations do not include a reversal of the burden of proof to the disadvantage of the contractual partner. If the subject of the purchase agreement is defined only generically, our liability shall also be determined based on the above provisions exclusively; liability not based on fault shall be excluded. Liability pursuant to the German Product Liability Act along with other mandatory liability-based legislation (German Environment Liability Act etc.) remain unaffected.
We retain title of all articles supplied by us until all the provisions of the contract of supply have been met. In the case of culpable conduct in contravention of the contract on the part of the contractual partner, in particular payment arrears, we are entitled, having set a fair deadline, to take back the goods, which the contractual partner is obliged to surrender. The setting of a deadline accordance with clause 2 is unnecessary if we are also entitled to withdraw from the contract without notice.
In the case of seizure or other orders by a third party, the contractual partner must advise us immediately in writing so that we can take legal action pursuant to § 771 of the German Code of Civil Procedure. Where the third party is not in a position to pay us the judicial and extra-judicial costs of legal action pursuant to § 771 of the German Code of Civil Procedure, the contractual partner shall be liable for payment to us of the costs incurred.
We retain title of all articles supplied by us until all the provisions of the contract of supply have been met. For payments towards current invoices the retention of title shall apply to the outstanding balance of the respective account. The contractual partner is required to insure our property against fire, flood and theft. Claims against the insurance are assigned to us.
The contractual partner is entitled to resell the goods supplied in the ordinary course of business provided he in turn supplies under retention of title should his customer fail to make payment in full. Resale is considered not to be in the ordinary course of business if the contractual partner has agreed an effective prohibition on assignment with his customer; allocation to an open account shall, however, be permitted.
In the case of resale, the contracting party will immediately assign to us all receivables to the amount of the sum total of the final invoice amount (including VAT) incurred from the resale to his customer or third parties, regardless of whether resale of the goods supplied occurred without or after processing. The contractual partner is entitled to collect these receivables even after their assignment. This does not affect our authorisation to collect these receivables ourselves; however we undertake not to collect the receivables as long as the contractual partner fulfils its payment obligations and is not in payment arrears. In this case we are entitled to demand that the contractual partner disclose the assigned receivables and associated debtors, provide all details necessary for their collection, hand over the associated documents and advise the debtors (third parties) of the assignment.
At the request of the contractual party we undertake to release those securities we elect if their value exceeds the receivables to be secured by more than 20%, provided these have not been settled. A claim for return cannot be asserted if and as far as a claim for release is opposed to it.
12. Property rights/confidentiality
We hold the rights of ownership, copyrights and all other industrial property rights on all our items of clothing, patterns, models, drawings, estimates, calculations and all such information of tangible or intangible nature, including in electronic form. The contractual is not permitted to copy or duplicate any such information in any way whatsoever, nor to make it available to third parties.
Should the contractual partner receive such information as part of the contract negotiations, he is obliged to return it to us at his own cost should the contract not be concluded. The contractual partner must not make any information which we expressly state is confidential available to third parties without our express prior written consent.
Items supplied by us remain our intellectual property and are subject to our industrial property rights. For each case of breach of these property rights, in particular where the contractual partner has our goods produced by third parties, the contractual party promises to pay a contractual penalty of €10,000; each singular act will be deemed an individual infringement. Notwithstanding, we are entitled to claim compensation, taking the contractual penalty into account.
13. Data protection
When the contractual partner enters into a contractual relationship with us, he agrees to us using his details within the Wortmann Group of companies for internal purposes only.
14. Final stipulations
German law applies. German substantive and procedural law will also apply even where German law provides for the application of foreign law. Application of the UN convention on the international sale of goods is excluded.
Should any of the individual clauses of these General Terms and Conditions of Sale and Supply become invalid, the validity of the remaining clauses and the remaining text of said clauses remain in force; legal regulations shall always take precedence over invalid clauses. The court of jurisdiction is Detmold. We are also entitled to bring a case against the contractual partner at his place of registration.