TERMS OF SERVICE

Black Hawk Clothing UG

 

1. general, scope of application

1.1
These General Terms and Conditions (GTC) shall apply to all business relations with our customers.

1.2
These GTC shall apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 BGB).

1.3
These General Terms and Conditions shall apply in the version valid at the time of the Buyer’s order or, in any case, in the version last notified to him in text form as a framework agreement also for similar future contracts with the Buyer without our having to refer to them again in individual cases. With regard to the form of any agreements deviating from this, reference is made to Clause 1.6.

1.4
We provide our services and conclude contracts exclusively on the basis of these General Terms and Conditions. We hereby expressly object in full to any deviating, conflicting or supplementary general terms and conditions of the Buyer, including those governing items not mentioned in these GTC. General terms and conditions of the Buyer shall only be deemed accepted if we have previously expressly consented to their application in text form. This consent requirement shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s general terms and conditions.

1.5
Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or our written confirmation shall be authoritative for the content of such agreements, subject to proof to the contrary.

 

2. conclusion of the contract

2.1
Our offers are subject to change and non-binding. This also applies if we have provided the purchaser with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or other information or documents – also in electronic form – (hereinafter referred to as “documents”). We reserve ownership rights to such Documents as well as all rights of use under copyright law. The provisions of the GeschGehG shall apply to these Documents (at least analogously), irrespective of the scope of application of this Act. They shall therefore be kept secret by the Buyer by taking reasonable measures.

2.2
The Buyer’s order shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within four weeks of its receipt by us.

2.3.
The acceptance of this contract offer by us can either be declared in text form to the Buyer (e.g. by sending an invoice, a delivery bill or an order confirmation – also electronically) or by delivery of the goods to the Buyer.

3. payment modalities

3.1
The agreed purchase price is due upon delivery without the need for an invoice. However, we shall endeavor to send the Buyer an invoice promptly after delivery. The Buyer expressly agrees to invoices being sent by e-mail. He shall provide us with a suitable e-mail address for this purpose.

3.2
We shall be entitled at any time to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.

3.3
The Buyer shall have a right of set-off and a right of retention only to the extent that its respective (counter-)claim has been finally adjudicated or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights in accordance with Clause 7.4 of these General Terms and Conditions shall remain unaffected. The Buyer’s rights of retention may only be based on counterclaims from the same contractual relationship, whereby the lack of receipt of an invoice shall not constitute a right of retention.

3.4
The buyer comes – subject to otherwise agreed terms of payment – one week after the due date of the purchase price payment in default (see § 286 para 2 No. 2 BGB). During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.

3.5.
If, in accordance with the contract, the delivery is to be made later than four months after conclusion of the contract, we shall be entitled to adjust the price appropriately to the changes in the relevant collectively agreed wages and/or the cost of materials and/or other costs which have occurred between conclusion of the contract and delivery. The latter shall also apply, irrespective of the aforementioned four-month period, if the purchasing costs incurred by us have been substantially increased due to unforeseeable, in particular political or official decisions, such as the introduction of customs duties or measures to combat a pandemic, and our price adjustment is based exclusively on these increases.

3.6
If, after conclusion of the contract, it becomes apparent that our claim to payment of the purchase price is jeopardized by the Buyer’s inability to perform, we shall be entitled to refuse performance (Section 321 of the German Civil Code (BGB)) and – if necessary after setting a deadline – to withdraw from the contract in accordance with the statutory provisions. In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare the withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

3.7
In the case of intra-Community deliveries, the Buyer shall be obliged to inform us of its VAT ID number, as well as to provide the other information necessary for checking the tax exemption and to provide the documents necessary for proving the tax exemption. If the Buyer fails to comply with these obligations without delay, we shall be entitled to treat the delivery as not being tax-exempt, so that the applicable VAT will be additionally charged and demanded. Insofar as we have wrongly treated a delivery as tax-exempt due to incorrect information provided by the Buyer, the Buyer shall indemnify us against the tax liability upon first request and shall bear all expenses incurred in this respect.

 

4 Delivery of the goods, delivery dates

4.1
Delivery shall be made from our warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the Buyer’s request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. Unless otherwise expressly agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

4.2
The delivery time is agreed individually or stated by us upon acceptance of the order / in the contract confirmation. The agreement of delivery times does not represent a fixed transaction; deadlines and dates are only approximate, if they are not expressly designated as binding in the order confirmation. We are also entitled to deliver before the agreed delivery date.

4.3
We shall be solely responsible for the timely and proper delivery to the transport company. We shall not be responsible for any delays caused by the transport company, unless such responsibility results from a mandatory statutory provision.

4.4
If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Buyer to the extent of the non-availability. A case of non-availability of the performance in this sense shall be deemed to be in particular the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.

4.5
The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer shall be required. Damages shall be limited to a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has not suffered any damage at all.

4.6
If the goods are in stock when the offer is accepted by the customer and the delivery is made against advance payment, we shall keep the goods in stock within a period of five working days after conclusion of the contract. If payment of the full purchase price (including VAT and any shipping costs) is not received by us within this period, we shall be entitled to sell off the goods. In this case, the goods will be dispatched within a further period of five working days only as long as stocks last.

4.7
If the goods cannot be delivered or cannot be delivered in time, we shall notify the Buyer thereof without delay. The delivery period shall be extended in a reasonable manner in the event of delayed self-delivery through no fault of our own by our suppliers, in the event of force majeure (e.g. measures to combat a pandemic, natural disasters or civil unrest), strikes, industrial action, operational disruptions, shortages of materials or energy through no fault of our own or similar events for which we are not responsible and which prevent delivery. If these circumstances result in an impediment to performance that is not merely temporary, we shall be entitled to withdraw from the contract.

If the hindrance lasts longer than two months, the buyer is entitled to withdraw from the contract with regard to the part not yet fulfilled. With regard to the already fulfilled part, he can only withdraw if the acceptance of the already performed partial performance is not reasonable for him.
In the event of a (partial) withdrawal, we shall reimburse the customer for any payments made to the extent of the contract cancelled by the withdrawal within a reasonable period of time.

4.8
If changes to the content or scope of the product delivery are agreed by mutual consent after conclusion of the contract, the delivery period for the entire delivery shall start anew at the time of the change. We shall also be entitled in this respect to deliver before the agreed delivery date.

4.9
We shall be entitled to make partial deliveries, provided that they are reasonable for the Buyer. The additional shipping costs caused thereby shall be borne by us.

4.10.
The rights of the Buyer pursuant to Section 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

 

5 Transfer of risk

5. 1
The risk of accidental loss, accidental deterioration or accidental loss of the delivered goods, as well as the risk of delay (hereinafter: “risk”) shall pass to the Buyer upon handover to the carrier of the goods. The handover shall be deemed to have taken place if the Buyer is in default of acceptance.

5.2
Transport insurance for the ordered goods shall only be taken out at the express request and expense of the Buyer.

5.3
If the Buyer is in default of acceptance, fails to cooperate or if shipment is delayed due to circumstances for which the Buyer is responsible, the risk shall pass to the Buyer upon our notification that the goods are ready for shipment. In this case, the Buyer may be invoiced for the costs incurred for the storage of the goods ordered, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification of readiness for shipment. These costs shall amount to an amount of at least 0.5% of the scope of the offer. Both parties are at liberty to prove that the damage was higher or lower or that there was no damage at all. Our statutory claims for damages (in particular compensation for additional expenses, reasonable compensation, termination) shall also remain unaffected, whereby any damages paid in accordance with the above lump sum shall be offset against any further claims for payment.

 

6. retention of title

6.1
We retain title to the delivered goods until all present and future claims arising from the purchase contract and the ongoing business relationship with the Buyer (secured claims) have been settled in full.

6.2
The Buyer shall be entitled to resell and/or process the delivered goods subject to retention of title in the ordinary course of business. In the event of any resale, the Buyer hereby assigns to us the claims arising from the resale in respect of the purchase price payable to us. However, this assignment shall only apply to the amount corresponding to the price invoiced by us for the goods. The customer shall be entitled to collect the claims thus assigned to us in the ordinary course of business, provided that this authorization may be revoked at any time vis-à-vis the purchaser or the purchaser’s customers for good cause, in particular in the event of default in payment, cessation of payment, opening of or filing for insolvency proceedings or reasonable indications of over-indebtedness or imminent insolvency of the purchaser. Such revocation shall at the same time also include the revocation of the Buyer’s authority to further sell and process the goods subject to retention of title. In the event of revocation, the Buyer shall be obliged to notify us of the assigned claims together with the corresponding debtors and to provide us with all further information required to collect the claims, as well as to hand over the relevant documents and to notify the debtors of the assignment.

6.3
In the event of combination or mixing of the reserved goods, we shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the processed items at the time of processing.

6.4
In the event of seizure, confiscation or encroachment by a third party on the ownership rights to the goods, the Buyer shall notify us immediately. The Buyer shall not be permitted to transfer ownership by way of security or otherwise encumber the reserved goods with the rights of third parties.

6.5
The buyer is obliged to insure the reserved goods against the usual risks such as fire, water, theft, etc. at his own expense and to provide proof of this insurance upon our request. If the Buyer fails to comply with the insurance obligation, we shall be entitled to take out the insurance at the Buyer’s expense, to disburse the insurance premium and to demand it from the Buyer. The buyer assigns to us already now all claims against the insurer or damaging party with priority for the insurance case. We accept this assignment.

6.6
As far as the realizable value of all security rights, which are entitled to us, exceeds the height of all secured claims by more than 10%, we will release a corresponding part of the security rights on request and appropriate explanation of the buyer; the buyer is entitled to the choice with the release between different security rights.

 

7. liability for defects

7.1
In the event of defects in the goods, the Buyer shall be entitled to the statutory claims based on liability for defects, unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 et seq. of the German Civil Code). Claims arising from supplier recourse shall be excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by incorporation into another product.

7.2
We warrant that the delivery item has the agreed quality at the time of transfer of risk. An agreement on quality shall be measured exclusively in accordance with the specific agreements made in writing between the parties on the properties, features and performance characteristics of the delivered goods. Reasonable modifications shall neither constitute a breach of a quality agreement nor a reason for warranty. Reasonable changes are insignificant deviations of the delivered goods compared to the descriptions and specifications in the written and electronic documents with regard to technology, color, weight, dimensions, design or similar characteristics. Public promotions, statements or other advertising by a third party, such as the manufacturer of the goods, shall have no effect on the agreed quality and can therefore not constitute grounds for defects.

7.3
As a matter of principle, we shall not be liable for defects of which the Buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence, provided that the requirements of § 442 BGB (German Civil Code) are met.

7.4
Insofar as a defect subject to warranty exists, we shall be entitled to choose between rectification of the defect (subsequent improvement) or delivery of a defect-free item (replacement delivery) (subsequent performance). In this respect, we shall have the right to remedy the defect twice. The statutory cases in which the setting of a deadline is dispensable shall remain unaffected. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected. The Buyer shall cooperate in the supplementary performance to the extent required, in particular he shall grant us the time required for this and hand over the defective goods.

7.5
We are entitled to make the owed supplementary performance dependent on the fact that the buyer pays the due purchase price. However, the buyer is entitled to retain a reasonable part in relation to the defect.

7.6
In principle, in the case of liability for defects, the defective item shall be sent to us at our expense. We shall return to the Buyer the goods which have been removed or replaced by the defect. Replaced parts shall become our property. We shall bear the expenses necessary for the purpose of subsequent performance in the case of liability for defects, with the exception of those costs which are based on the fact that the Buyer wishes the (subsequent) delivery to be taken to a place other than his place of business. If it turns out that the goods were not defective, we shall be entitled to demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect, unless the lack of defectiveness was not apparent to the Buyer.

7.7
The liability claims of a merchant for defects presuppose that he has complied with his statutory obligations to examine the goods and to give notice of defects (§ 377 HGB). If a defect becomes apparent upon delivery, inspection or at a later point in time, we shall be notified thereof without delay. In any case, obvious defects must be notified to us within 5 working days after delivery at the latest. Hidden defects must be notified to us within 5 working days of their discovery. If the Buyer fails to meet this deadline, our liability for the defect not reported or not reported properly shall be excluded in accordance with the statutory provisions.

7.8
In case of failure of the subsequent performance or after the expiry of a reasonable period of time set by the Buyer for the subsequent performance, unless such period of time is dispensable according to the statutory provisions, the Buyer may withdraw from the contract or reduce the purchase price. In the event of an insignificant defect, there shall be no right of rescission.

7.9
Claims of the Purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with Clause 8 and shall otherwise be excluded.

7.10
The liability period for defects shall be six months from delivery. We shall be liable for rectifications of defects to the same extent as for the rectified goods, namely until the expiry of six months from the delivery of the originally delivered goods to the purchaser, unless mandatory statutory provisions prevent this. The same shall apply to the delivery of replacement items within the scope of subsequent performance.

 

8. liability

8.1
For all claims of the parties against each other which are not claims for performance or serve the fulfillment of contractual obligations, in particular for claims for damages or reimbursement of expenses, whether arising from impossibility, delay, self-performance, termination or reversal after rescission, irrespective of the question of a breach of duty, the degree of fault or the basis of the claim, we shall only be liable for damages caused intentionally or by gross negligence. In particular, we shall not be liable for the slightly negligent breach of immaterial obligations arising from the contractual obligation. This limitation of liability shall also apply to our liability due to damage caused by employees, representatives and vicarious agents.

8.2
The limitations of liability pursuant to Section 8.1 shall not apply to personal injury, to claims under the Product Liability Act, to the case of fraudulent concealment of a defect or to the breach of material contractual obligations. In the latter case, however, liability shall be limited to the foreseeable, typically occurring damage.

8.3
If the Buyer sells the goods unchanged or after processing, transformation or combination with other goods, he shall indemnify us internally against product liability claims of third parties to the extent that he is responsible for the defect giving rise to the liability.

8.4
The provisions of the above clauses 8.1 to 8.3 of these General Terms and Conditions shall also extend to damages in addition to performance and damages in lieu of performance, irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the obligation or from tort, as well as to indirect damages, provided that the latter is not precluded by a statutory prohibition. They shall also apply to the claim for reimbursement of futile expenses, including liability due to defects, delay or impossibility.

8.5
Due to a breach of duty which does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination on the part of the Buyer is excluded. In all other respects, the statutory requirements and regulations shall apply.

9. final regulations

9.1
Contract conclusion and contract completion take place in English language.

9.2
The contract existing between us and the buyer is subject to the right of the Federal Republic of Germany under exclusion of the UN-Kaufrechtsübereinkommen.

9.3
References to the applicability of statutory provisions in these GTC shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

9.4
Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Amendments to these GTC shall only be effective if they have been agreed in writing; this shall also apply to an amendment of this written form requirement. Written in the sense of these GTC includes any declaration made at least in text form.

9.5
If the customer is a merchant, a legal entity under public law or a special fund under public law, the courts at our registered office shall have exclusive jurisdiction for all disputes arising from or in connection with the relevant contractual relationship. We shall remain entitled to bring an action at the place of the customer’s registered office.

9.6
Neither party shall be entitled to transfer its claims arising from the contractual relationship to third parties without the consent of the other party. This shall not apply to monetary claims.

9.7
Should one or more provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. The parties shall endeavor to replace the invalid provision with the valid provision that comes closest to the economic intentions of the parties.