Terms and Conditions of Delivery and Payment of Gabor Footwear GmbH (hereinafter referred to as "Gabor Footwear"):
§ 1 Standard provisions, conclusion of contract
(1) The Standard Terms and Conditions of Business below apply to all contractual agreements, declarations of intent and implied legal transactions of Gabor Footwear. Solely Gabor Footwear's Terms and Conditions of Sale apply; Gabor Footwear does not acknowledge the Customer's terms and conditions that conflict with or differ from Gabor Footwear's, unless Gabor Footwear had expressly consented to their validity in writing.
(2) All agreements concluded between Gabor Footwear and the Customer for the purpose of fulfilling the contract are laid down in writing in this contract. Supplements require at least the text form (§126b BGB), no verbal agreements are entered into.
(3) Gabor Footwear's Terms and Conditions of Sale apply only to traders as defined in § 310 para. 1 BGB.
(4) Gabor Footwear reserves the right to accept orders. The first order placed by a customer is deemed accepted by Gabor Footwear unless explicitly rejected by Gabor Footwear within 20 days of receipt. A time limit of 10 days applies to subsequent orders. The date of dispatch determines compliance with the times limits for refusal.
(5) Gabor Footwear reserves all proprietary rights and copyright to illustrations, drawings, calculations and other documents. This also applies to written documents marked "confidential". The Customer requires the explicit approval in writing of Gabor Footwear before passing them on to third parties.
(6) Gabor Footwear’s approval is required for goods to be resold online.
§ 2 Delivery and transfer of risk
(1) All deliveries are made within the European Union from the Gabor Footwear Logistics Centre at the Customer's risk, carriage paid, by the method of dispatch most favourable to Gabor Footwear (e.g. cargo, by post, forwarder or parcel service). All deliveries to customers outside the European Union are made on the basis of individual agreements.
(2) Additional costs for a method of dispatch differing from para. 1, sentence 1 or the Customer's special requirements (e.g. by courier or express, marking, special order picking) shall be borne by the Customer, unless agreed otherwise between the Customer and Gabor Footwear.
(3) Orders that for one delivery date are below a value of € 550.00 (with subsequent orders € 275.00) are delivered with carriage not prepaid.
§ 3 Reservation of ownership, pledging and assignment by way of security
(1) Gabor Footwear reserves the ownership of the delivered goods until all payments arising from the business relations with the Customer have been received. The Customer may resell the goods in the usual course of business. The Customer assigns to Gabor Footwear all receivables to which he is entitled arising from the resale up to the amount of the total outstanding receivables for the purpose of securing them.
(2) The delivered goods cannot be pledged or assigned by way of security to third parties without the consent of Gabor Footwear. The Customer is obliged to inform Gabor Footwear promptly of any distraint relating to goods belonging to Gabor Footwear. Neither balancing of accounts nor acceptance of the statement of accounts affects the reservation of ownership.
§ 4 Delivery time, liability
(1) Force majeure, industrial disputes (strike and lock-out) or official measures entitle both Gabor Footwear and the Customer to extend the time limit for delivery and the taking of delivery by the duration of the impediment, albeit by not more than three weeks, to the exclusion of claims for compensation. Once this time limit is over, both the Customer and Gabor Footwear are entitled to cancel the contract.
(2) In other cases Gabor Footwear is in default if Gabor Footwear does not deliver before the end of the agreed 10-day delivery period. After a 22-day time limit for subsequent delivery from the end of the agreed 10-day delivery period the contract is deemed cancelled unless the Customer refuses such a cancellation before the end of the time limit for subsequent delivery and demands fulfilment of the contract. In this case Gabor Footwear is required to promptly state a binding delivery date. Unless the Customer promptly objects to this deadline, it is deemed a fixed deadline. If Gabor Footwear does not state the delivery date promptly, the Customer is entitled to cancel the contract immediately by registered letter or after the 22-day time limit for subsequent delivery demand compensation for non-fulfilment. The contract is likewise deemed cancelled after the 22-day time limit for subsequent delivery if Gabor Footwear before or during the time limit for subsequent delivery demands whilst stating a binding delivery date that the Customer declare whether he insists on fulfilment of the contract by the stated fixed deadline and the Customer does not make a statement promptly or there is no agreement on the deadline.
(3) Instead of the automatic 22-day time limit for subsequent delivery under para. (2), in the event of Gabor Footwear defaulting, the Customer can at any time set Gabor Footwear a time limit of 15 days declaring that he declines fulfilment of the contract once the time limit is over. The time limit commences on the day the Customer sends the declaration by registered letter with recorded delivery or by fax. Once the time limit is over, the Customer is entitled to demand compensation for non-fulfilment unless the delivery is made before the claim for compensation is received.
(4) Fixed date transactions are excluded with first orders.
§ 5 Warranty
(1) Visible defects must be objected to in writing. The objection must be raised and substantiated within 10 days of receipt of goods, or within 10 days after the agreed delivery date in the event of delivery before the agreed delivery date. A precondition for the Customer's warranty claims is that he has complied with his obligations under § 377 HGB to examine and give notice of defects.
(2) The statutory provisions apply to defects that are not apparent.
(3) The goods objected to may be dispatched only with the consent of Gabor Footwear carriage paid to the address indicated by Gabor Footwear for the return, unless Gabor Footwear has not acceded to the notice of defects within 10 working days of receipt. In the event of legitimate complaints, Gabor Footwear shall reimburse the Customer proven costs of postage.
(4) With complaints about individual pairs the Customer may return the goods at the same time as the notice of defects. Such complaints must be settled by Gabor Footwear within 12 working days from the day received at the factory responsible; otherwise the Customer is entitled to debit this purchase price.
(5) If the Customer has settled a consumer complaint by exchange without first consulting Gabor Footwear, provided the complaint was justified as can be proven and it would only have been possible to rectify the defect by incurring expenditure disproportionate to the value of the goods, Gabor Footwear shall choose to issue the Customer with a credit note or make a replacement delivery. The Customer still runs the risk of Gabor Footwear rejecting the complaint.
(6) Neither the Customer nor Gabor Footwear is permitted to charge any type of processing costs for complaints.
(7) Gabor Footwear is liable in accordance with statutory provisions insofar as the Customer asserts claims for compensation based on gross negligence or wilful intent, including gross negligence or wilful intent on the part of Gabor Footwear's representatives or vicarious agents. Unless Gabor Footwear is imputed with intentional breach of contract, the liability for compensation is limited to foreseeable, typically occurring loss or damage. This does not affect liability for culpable injury to life, limb and/or health; the same applies to strict liability under the German Product Liability Act.
§ 6 Methods of payment
(1) Invoices are raised on the day of dispatch or, if the Customer collects the goods himself, the day delivery is taken of the goods; if the goods are delivered early, the agreed delivery date is deemed the day the invoice is raised.
(2) Settlement dates that alter the due date are inadmissible, with the exception of paragraph 3.
(3) In the event of proven new building or conversion work of a significant scope to the Customer's business premises, with first purchase orders the invoice can be raised up to 30 days later than the agreed delivery date exceptionally and only upon written application from the Customer substantiated beforehand.
(4) Invoices are due once received by the Customer. Invoices from the 1st to the 10th, from the 11th to the 20th and from the 21st to the end of each month can be pooled to the last day of this timeframe. § 286 para. 3 BGB applies to the occurrence of default. After the occurrence of default § 288 para. 2 BGB applies. § 288 para. 3 and 4 BGB also apply.
(5) If loss-free payment is made within 10 days of the invoice date, the Customer will be granted a 3% discount.
(6) Gabor Footwear and the Customer can agree concurrently in writing one or more of the dates for payment listed.
(7) The day of payment is deemed the day on which the Customer's bank sent the payment to Gabor Footwear's account as can be proven.
(8) The Customer is entitled to rights of retention only if his counterclaims are established in law, uncontested or acknowledged by Gabor Footwear. Moreover, the Customer is authorised to exercise a right of retention only insofar as his counterclaim is based on the same contractual relationship.
§ 7 Default, deterioration in the Customer's financial situation
(1) Should the Customer default on the payment of an invoice due or his financial situation deteriorate considerably, Gabor Footwear can demand immediate payment for all goods deliveries already made, with the term of payment lapsing, of all outstanding invoices without a period of grace having to be set. If the Customer has placed further purchase orders with Gabor Footwear but Gabor Footwear has not delivered the goods yet, Gabor Footwear is entitled to choose to either refuse delivery and demand prepayment for the pending goods deliveries or cancel the contract.
(2) Should the Customer default on payment, Gabor Footwear is entitled to recover the goods already delivered. Gabor Footwear's recovery of the goods does not constitute cancellation of the contract unless Gabor Footwear had declared in writing to this effect. After recovering the goods, Gabor Footwear is entitled to sell them appropriately, with the proceeds of the sale minus the costs of the sale being offset against the Customer's liabilities.
(3) Should the Customer default in taking delivery or culpably fail to comply with other duties to co-operate, Gabor Footwear is entitled to demand compensation for the loss or damage sustained thereby, including any extra expenditure. Gabor Footwear reserves the right to make further claims in the event of default on payment or in taking delivery.
(4) Insofar as the preconditions of para (3) sentence 1 are met, the risk of accidental destruction or accidental deterioration of the purchase item(s) is transferred to the Customer at the time the Customer enters into default.
§ 8 Standard terms and conditions of contract, place of performance and jurisdiction
(1) The place of performance, payment and fulfilment for all obligations arising from the legal relations between Gabor Footwear and the Customer is Gabor Footwear's domicile.
(2) The place of jurisdiction for all contractual and extra-contractual disputes with the Customer is Gabor Footwear's domicile. The same applies if the Customer's residence, place of business or usual place of abode is not known at the time the claim is filed. Gabor Footwear is however entitled to sue the Customer at the court with jurisdiction for his residence or place of business.
(3) In the case of transactions with purchasing associations, their domicile is deemed the place of jurisdiction.
(4) The contractual language is German. In the event of differences between the German version of the Terms and Conditions of Delivery and Payment and the versions in other languages, the German version invariably prevails.
(5) The contract is subject solely to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(6) Should one of the above provisions be wholly or partly invalid, this shall not affect the validity of the other provisions. Unless § 9 comes into effect, the parties to the contract undertake to replace the invalid provision with a legally valid provision that best approximates the economic sense and purpose intended with the invalid provision.
§ 9 Validity of the terms and conditions of the German Footwear Industry's Conditions Cartel
Unless agreed otherwise above or if one of the above agreements is wholly or partly invalid, the terms and conditions of the German Footwear Industry's Conditions Cartel apply additionally. These terms and conditions can be obtained by the Customer from Gabor Footwear at any time upon request.