General Terms and Conditions of Business of API Apparel Partners International GmbH for resellers

Preamble
(1) Our General Terms and Conditions of Business (also referred to as the ‘terms and conditions of business’ henceforth) solely apply to all of the contracts with our customers who are entrepreneurs or businessmen for the purposes of Article 14 of the German Civil Code, or who are legal entities according to public law, or who are special assets according to public law. We do not recognize the customer’s terms and conditions that conflict with our terms and conditions of business or which diverge from them, unless we would have expressly consented to their validity. Our terms and conditions of business also apply whenever we make the delivery unreservedly, while being aware that the customer’s terms and conditions conflict with our terms and conditions of business or diverge from them.
(2) Our terms and conditions of business also apply to all of the contracts with the customer within the framework of the existing business relationship.

1. Purchase order and acceptance of order
(1) All of the purchase orders, which the customer will place with us, need to be accepted by us through a written acknowledgement of order, unless the matter concerns a cash transaction.
(2) Our quotations are provisional, subject to change without notice and offered without engagement; we can revoke them at any time before we receive the customer’s written declaration of acceptance, unless we have expressly described our quotation as binding.
(3) Slight divergences – especially regarding the materials, design and fabrication – from the purchase order of the article that was ordered or delivered, remain expressly reserved within the framework of technical progress.
(4) We can withdraw from the contract whenever our suppliers do not supply us correctly or in good time: this only applies to the case that we are not responsible for the non-delivery and especially in the case of concluding an identical covering transaction with our supplier. We do not accept any risk of procurement beyond that. We will immediately inform the customer about non-availability of the goods and we will immediately reimburse a quid pro quo payment that we have received already.
(5) The brochures, advertising literature or information that are published by us or by the manufacturer on our home page only become part of the delivery item’s agreed quality whenever we have expressly agreed this with the customer.

2. Period of delivery
(1) The following terms and conditions apply in the case that a period of delivery is agreed or required.
The dates of delivery that we state are non-binding unless they have been expressly confirmed in writing as the ‘binding date of delivery’.
(2) The prerequisite for complying with the period of delivery is that the customer will fulfill the contractual duties which he has undertaken in good time; especially by making the agreed payments and providing the agreed securities should the occasion arise.

3. Despatch
(1) The delivery is agreed as ex-works (EXW – INCOTERMS 2010), insofar as we do not expressly agree anything contrary with the customer.
(2) If it is agreed with the customer to despatch the ordered goods, then this will be done from our principal place of business on the customer’s account and at his risk. We are free to choose the transport company as well as the type of the means of transport, in the absence of special agreements. The risk will also pass to the customer when the goods are despatched from our principal place of business, if the delivery with prepaid freight is agreed.
(3) If the despatch is delayed by circumstances for which the customer is not responsible, then the risk will already pass to the customer at the point in time when the despatch is ready. The customer has to bear the costs (especially storage expenses) that have arisen through the delay or because the customer has delayed an acceptance.
(4) We are not obligated to insure the consignment against transport damage or loss in transit, nor to arrange for it to be insured, unless we have agreed this with the customer in writing.
(5) Our obligation to deliver will be interrupted in the cases of force majeure (e.g., industrial disputes with us or our suppliers, war, fire, hindered transport, shortage of raw materials, official measures or natural events) for the period of its duration plus a reasonable start-up period and for the extent of its effect; that also applies whenever we are already delayed with the delivery. We will immediately notify the customer about the onset of a case of force majeure and about the probable duration of the hindrance. We are entitled to entirely or partially withdraw from the contract because part of it has not been fulfilled yet, whenever it is unreasonable for us to continue the contract on account of the duration of force majeure and also after considering the customer’s interests.
(6) If the hindrance lasts for longer than three months, then the customer will be entitled to withdraw from the contract regarding the part of it that has not been fulfilled yet.

4. Liability for defects
(1) The customer is obligated to inspect the delivered goods immediately after delivery and to notify us in writing straightaway about any apparent defects (or on the fifth working day following the delivery at the latest). The customer has to notify us in writing about any latent defects immediately after discovering them (or on the fifth working day following the discovery at the latest). Any defects that have been criticized belatedly, i.e., contrary to the preceding duties, will not be considered and they are excluded from the warranty.
(2) We will only recognize the customer’s complaints if they have been notified to us in textual form (an e-mail suffices). Complaints that will be asserted vis-à-vis our field service’s employees or transporters or other third parties, do not represent any formal complaints and timely complaints.
(3) The goods can only be returned to us with our prior agreement, whenever it is required to do so in the case of a defect.
(4) The provisions about the period of delivery apply accordingly, in the case that a repair is made or a replacement is delivered on account of a justified customer’s complaint.
(a) The right is vested in us to choose whether to deliver a new article or to remedy a defect.
(b) However, we have the discretionary right meanwhile to give a renewed subsequent performance, in the case that an attempt at subsequent performance has failed. The right to withdraw from the contract or to reduce the purchase price is only vested in the customer if the repeated subsequent performance fails too. Article 281 II of the German Civil Code and Article 323 II of the German Civil Code remain unaffected.

5. Liability for infringement of duty and the statutory period of limitation
(1) We are only liable for negligently caused damage to property and assets in the case of infringing an essential contractual duty but the amount of compensation is limited to the damages that were foreseeable and contractually typical when the contract was concluded. The essential contractual duties are those which determine fulfillment of the contract and on which the customer must rely. We are liable according to the legal provisions otherwise.
(2) The customer’s claims to subsequent performance because of defects in the delivery item will be time-barred after one year. The customer’s claims to subsequent performance because of defects according to Article 438, Para. 1, No. 2 of the German Civil Code and Article 634a, Para. 1, No. 2 of the German Civil Code BGB remain unaffected by that.
(3) The customer’s other claims that he asserts because we have infringed our duties – especially claims for compensatory damages (e.g., in the case of infringing a duty of subsequent performance for which we are responsible) or claims arising from a guarantee – will be time-barred after one year.
Irrespective of that, the customer’s right remains to withdraw from the contract because we are responsible for an infringement of duty which is not based upon a defect. The legal statutory periods of limitation apply to the customer’s following claims, as a divergence from Line 1.
(a) According to the Product Liability Law and because of damage arising from injury to the life, limb or health, or infringing the essential rights and duties that arise from the contract.
(b) Because of damage that is based upon a deliberate or grossly negligent infringement of duty by us or by our agents or subcontractors.
(c) Because of concealing a defect deceitfully or fraudulently.
(d) Reimbursement of expenses according to Article 478, Para. 2 of the German Civil Code.
(4) The legal provisions about beginning the statutory period of limitation, suspending expiry, inhibition and newly beginning the time limit remain unaffected.
(5) Our claims against the customer will be time-barred according to the legal regulations.

6. Prices
(1) The prices are calculated as net prices for collection from our principal place of business (EXW – INCOTERMS 2010), excluding the incidental expenses like freight charges and customs duties for example, insofar as we do not agree anything contrary with the customer; these incidental expenses will be charged separately, insofar as they have been incurred. Turnover tax is not included in our prices; it will be shown separately in the invoice at the amount that is respectively valid on the day when the invoice is presented, insofar as any turnover tax arises.
(2) The customer can only set off or assert a right of retention or a right of refusal to pay, if his counterclaim has been established by a court of law or if it is undisputed. It is always possible as a divergence from Line 1 to set off or assert a right of retention or a right of refusal to pay, whenever this arises from the same legal relationship on account of a counterclaim to reimbursement of the extra costs that were incurred by remedying the defect or through completion.

7. Terms of payment
(1) Our invoices are payable by cash in advance, insofar as nothing else is agreed.
(2) Payment of the invoices.
(a) A discount of 4 % on immediate payments via a SEPA direct debit mandate.
(b) A discount of 2 % on payments up to and including the 10th day after presenting the invoice.
(c) Net in the case of payments up to and including the 30th day after presenting the invoice.
Default will commence from the 31st day of non-payment onwards according to Article 286 II, No. 1 of the German Civil Code.
(3) All of the debt claims that we assert against the customer – irrespective of whatever legal relationship – are due for payment immediately whenever any circumstances materialize which entitle us to withdraw according to the legal provisions or contractual provisions. If it will be recognizable otherwise that our claim to payment is jeopardized by the customer’s deficient ability to pay, then we are entitled to make all of the debt claims – which are still not due for payment and arise from the business relationship with the customer – due for payment immediately and we are also entitled to demand that the customer pays by cash in advance. Our claim for payment would be jeopardized in particular, if a bank or a credit reference agency indicates that the customer is not creditworthy, or if the customer falls into arrears with paying at least two invoices.

8. Reservation of ownership
(1) We reserve the ownership of the delivered goods (also called the ‘conditional commodities’) until the purchase price and all of the debt claims arising from the current business relationship with the customer have been settled in full. Suspending the individual debt claims in a current invoice and settling the balance on account do not affect the reservation of ownership; the reservation refers to the recognized or actual balance in this case. Only the equivalent value that is received by us or in our bank account applies. The reservation of ownership will not revive for the delivery items, if new debt claims arise from the business relationship with the customer after he has acquired ownership of these delivery items.
(2) The paid purchase price will substitute the goods in the case that the goods are sold during the regular course of business. The customer assigns to us herewith all of the debt claims that arise from a possible sale. The customer is empowered to collect these debt claims provided that he has complied with his payment obligations vis-à-vis ourselves. An assignment to a third party – especially to a bank – would be in breach of the contract and it is therefore impermissible with respect to the prolonged reservation of ownership (advance assignment of the respectively claimed purchase price). Likewise, a sale would be impermissible if it will be agreed within the framework of the sale that the customer’s debt claim against the third party lapses because of the settlement. We are entitled to check the customer’s sales documents at any time and to inform his buyers about the assignment.
(3) The empowerment according to Clause 8 (2) does not include transferring or pledging the conditional commodities as security, nor the articles that will be manufactured from them, without our consent. Our prior written consent is required in order to conclude financing contracts (leasing, for example) that include transferring our conditional commodities, insofar as the contract does not obligate the financing bank to pay us directly for the proportion of the purchase price that is vested in us.
(4) We must be notified immediately in the case that the goods are seized on the customer’s premises through sending us a copy of the compulsory execution record, to the effect that the matter of the seized goods concerns the goods which we delivered and which are covered by our reservation of ownership.
(5) The customer is subject to the duty of notification in the case that a third party asserts a claim against our ownership.
(6) If the value of the securities according to this clause’s preceding paragraphs exceeds by more than 10 % the amount of the debt claims that are secured as a result and which are still outstanding for a foreseeable duration, then the customer will be entitled to demand that we release the securities, insofar as the excess exists.
(7) The assertion of our rights arising from the reservation of ownership does not release the customer from his contractual obligations. The value of the goods at the point in time when they are taken back will merely be credited to our existing debt claims against the customer.

9. Place of performance, place of jurisdiction and miscellaneous matters
(1) Our principal place of business or registered office is the sole place of jurisdiction for settling all disputes that arise from the contractual relationship directly or indirectly. All of the obligations that arise from the contractual relationship must be met at our principal place of business or registered office, insofar as we have not agreed anything else with the customer.
(2) The law of the Federal Republic of Germany applies in every case and especially to international deliveries, subject to excluding the UN Purchase Law, i.e., the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) If individual provisions of this contract are ineffective or invalid, or if they become so, then the contract’s effectiveness will not be affected otherwise because of that. The ineffective or invalid provision applies as having been replaced by a provision that approximates as closely as possible to the economic sense and purpose of the ineffective or invalid provision in a legally effective way. The preceding regulation applies to regulatory loopholes accordingly. If the ineffective or invalid provision is a general term and condition of business for the purposes of Article 305 of the German Civil Code, then Articles 306 I and II of the German Civil Code apply as a divergence from the preceding rule.
(4) No action that is taken by us – apart from an express declaration of waiver in writing – represents a waiver of the right that is vested in us and which arises from the contract, or from these terms of business or the law. A waiver in the case of safeguarding or exercising our rights does not apply as a waiver of the relevant or affected right either. A non-recurring waiver of a right does not apply as a waiver of this right in the case of another matter.