Terms & Conditions
1. Validity of Terms
Deliveries, services and offers from or on behalf of the seller shall exclusively take place according to the terms of transaction as described in this document. The ICC Official Rules for the Interpretation of Trade Terms (INCOTERMS) are only supplementary and cannot overturn the contractual terms of sale. These terms shall apply to all future transactions, even if this is not expressly stated. This document abolishes any terms of transaction or sale of the buyer. These terms of transaction may only be varied or waived by a duly executed written agreement between the seller and the buyer. In this document, all products and by-products of spinning mills, in other words generally the merchandise shall herein be referred to as yarns.
2. Offers, Orders & Sales agreements
Every sale agreement can only be concluded by a written document. The seller is obliged to send the sale agreement confirmation (herein referred to as SAC). The SAC shall be sent to the buyer by email or fax or by a registered letter and it is the only valid sale agreement and it supersedes any and all prior communications between the seller and the buyer that lead to the approved agreement, either after an offer by the seller, either after a communication or order by the buyer, addressed to the headquarters of the seller or to sales agents of the seller, or to independent contractors of yarn sales. The SAC on behalf of the seller is the only document certifying the sale agreement. The buyer is obliged to submit its objections about the terms of the SAC, without negligence (objections), by e-mail, or fax, or by a registered letter, so that they are received by the seller within fifteen (15) days, otherwise the SAC is considered to be accepted. In case of objections about the SAC, the buyer is obliged to submit them immediately and before the loading of the yarns for consignment. It is expressly and generally agreed that once the buyer receives the first consignment of yarns, the buyer has accepted the terms of the SAC.
3.1 Prices mentioned at the SAC do not include the Value Added Tax (VAT) or any other tax charges.
3.2 Prices include, unless otherwise provided by mutual agreement, the common packaging of the seller.
3.3 Prices shall change, if there is at least a ten-week period between the established agreement and the date of delivery and only if during this period and until the delivery, the wages, the costs of raw materials or the costs generally increase. The seller has the right to increase the prices, but on a rational level and always according to the increase of cost. In this case, the buyer has the right to invalidate the contract without any cost for both parts only if it is about usually produced yarns of the seller. But in case of special yarns ordered by the buyer, the later is obliged to receive them with the changes in price (revaluation).
4. Time & Place of delivery
4.1 The time for delivery is described at the SAC of the seller followed by a serial number for every confirmation.
4.2 A change in time of delivery can only take place after a written agreement by the seller.
4.3 If a partial shipment has been agreed within the frame of a specific deadline, the deliveries shall take place in equal intervals of time and approximately with the same quantity, after an early notification by the seller about the desired time and place of the consignments. The seller has the right to execute these notifications within a reasonable period of time.
4.4 The buyer expressly accepts as legal any delivery on behalf of the seller in his premises or in other premises (p.e. a knitting mill), either precised by the buyer either according to the initial sale agreement (SAC) either according to the terms as described in §4.3 anyone has the right to sign for the delivery on behalf of the buyer, at the place of delivery.
4.5 In case there are two or more sale agreement confirmations, the seller has the right to execute the oldest confirmation first.
4.6 If the seller cannot finally execute the delivery up to schedule, the seller has the right to notify the buyer about an up to four (4) week delay. This doesn’t mean that the seller refuses to execute the agreement. In this case, the buyer has the right to notify the seller that he withdraws from the agreement, without any cost for both parts, with only exception the special yarns (see §3.3).
5. Acceptance & Warranty
5.1 After every shipment of yarns, the buyer is obliged to control the yarns. This control shall be thorough and with the aim to detect any possible faults. Complaints are only taken into account if they are submitted to the seller in a document describing the faults and omissions of agreed specifications. The obvious faults shall be referred before the processing of a considerable part of yarns and within twenty working days after the delivery. The hidden faults shall be referred immediately after their disclosure and in any case within six (6) months after the delivery of the yarns. Nevertheless, the buyer is obliged to act in good faith and with the aim to restrict the damage by faults or omissions of agreed specifications. In other words, the buyer has to process a sample of the delivered to a final product; it is the only way to detect non admissible faults or omissions of agreed specifications in relation to the product that the buyer wants to produce. These controls shall take place according to the established methods. The buyer shall proceed to this control thoroughly and in good faith within twenty (20) days since the delivery of the yarns sent by the seller and to notify the seller about it. In no case shall the supplier be answerable for consequential damages linked to the execution of the sales agreement. In particular, the supplier shall not be answerable for machine down-time.
5.2 Faults of the raw material that have not been caused – created by the seller shall never give the right to claim for compensation, a change, a reduction or withdrawal from agreements. They only give the right for the replacement of the merchandise within a reasonable period of time, with only exception the special yarns (see §3.3). Any responsibility of the seller is excluded when the buyer uses the yarns for the fabrication of products that the yarn is not adequate for. In case of complaints, before it is confirmed that the buyer has the legal right to return the yarn, the return is allowed only with the express consent of the seller. The seller and the buyer can address to experts who will give their report with the aim to facilitate the amicable dispute resolution.
5.3 The seller has no responsibility on a possible defective production by the buyer, when this is due to the mixing of Lots which is prohibited by the rules of spinning science and art.
5.4 Small, and technically inevitable deviation to quality are usual and do not give the right to the buyer to claim.
5.5 Complaints about the total weight shall be expressed within 24 hours since the arrival of the yarns to the destination.
5.6 The allowed added humidity (%) to the weight of dry yarns is:
100 % Cotton yarns 8,50 %
100 % Cel. Technical fibres yarns 13,00 %
100 % Animal fibres yarns 18,25 %
100 % Linen yarns 12,60 %
100 % Silk yarns 11,00 %
100 % Polyamide fibres yarns 6,00 %
100 % Synthetic fibres yarns 1,50 %
In the case of blended yarns, the added humidity is calculated according to the limits for every kind of yarn and according to its percentage.
5.7 The deviation to the fineness of yarns:
Raw yarn < ne 99 +/- 3%
>ne 99 +/- 5%
Finished yarns (incl. mercerised etc) – 3% + 5%
5.8 In a Lot with yarns of the same quality and count the following deviations are allowed: ±5 % for shipments of more than 800 kg ±10 % for shipments of less than 800 kg.
5.9 The cotton and the linen as natural fibres and the wool as an animal fibre may contain foreign matters that might not absolutely change their colour once dyed. The seller cannot guarantee the non-existence of these materials, even if he has established a device during the production procedure for the detection of foreign matters, but it is widely known that devices may reduce but in no case do they eliminate the foreign matters.
5.10 Any other claim for guarantee is not accepted. Complaints about defects or other complaints do not give the right to the buyer to claim for compensation or hold back.
5.11 The seller has the right to make an extra delivery in case of a deficient or improper delivery, in the frame of the agreed deadline with a reasonable extension of time limit. The seller is only charged with the cost of return and new shipment (conventional responsibility of the seller).
5.12 The seller has not the right to claim for compensation about the accomplishment or execution of the agreement, since there is no fraudulence or gross negligence. Compensations are neither accepted in case of failure to deliver, in case of positive circumstances preventing delivery, in case of deficient drawing up of the agreement and in case of unallowable operation.
6. Retention of Ownershop & Payements
The goods are delivered with retention of ownership according to the Directive 2000/35/EC and according to the following rules:
- The seller holds the ownership of the yarns processed or not as described in this agreement, until the date of repayment of the value of the yarns or of the repayment securities of the yarns, because the seller considers them as a guarantee and not as a COD instalment.
- The buyer has the right to sell the yarns according to the following terms:
6.1 In case of non obedience to the terms of this agreement, especially in case of payment delay, the seller has the right to take back the yarns and the buyer is obliged to return them.
6.2 The enforcement of retention of ownership rights as well as the seizure of products by the seller does not invalidate the contract unless it is expressly stated by the seller in a document.
6.3 The buyer has the right to sell the yarns in the frame of his usual activity, but he cedes with this document to the seller a priori and up to the amount of the value of every invoice (VAT included) all the claims resulting by the resale of the yarns, no matter whether the yarns has been processed or unprocessed. The buyer notifies the purchasers of the yarn about this concession.
6.4 The processing of the yarns of retained ownership with the use of other materials does not overturn the terms about retention of ownership. In case other products that do not belong to the seller are being used, the seller has ownership rights (shared ownership) over the new merchandise in proportion to the value of the seller’s merchandise to the value of the rest merchandise that have been incorporated to the new product . The value is calculated according to the time of processing.
6.5 The buyer has no right to disseise the products or to alienate the ownership as collateral. In case of collateral, seizure or contest by third parts, the buyer shall immediately notify the seller and give access to all information and documents that are necessary for the seller to maintain his rights. As for the claims of third parts, the buyer is obliged to notify the managers of the third parts about the ownership of the goods of the seller.
6.6 Amounts from conceded claims must be retained separately until a money order is claimed by the seller.
- Unless agreed otherwise, the invoices of the seller are payable the 60th day since the date of issue, without any further reminder. The seller has the right, in spite of the possible opposite regulations of the buyer, to determine the payments to the previous debts of the buyer first. If any expenses or interests occur in the meantime, the seller has the right to determine the payment of the expenses and then the interests and finally the main debt.
- A payment is considered to be accomplished when the amount is in the disposition of the seller. In case of cheques or other muniments, the payment has been accomplished when the cheque or the commercial drafts etc has been cashed.
- Interest for late payment is charged at 7 percentage points per year above the base interest rate of the European Central Bank rate.
- After the payment period has expired the seller is no longer obliged to make any further deliveries until the payments due are completely settled. In such cases the seller can demand payment in advance for all outstanding deliveries before these are delivered.
- The buyer is charged with the costs of muniments.
7. Governing Law, Jurisdiction & Partial invalidity
7.1 In all cases of disputes arising from this contract exclusive competence is with the ordinary courts. The place for jurisdiction for any legal actions arising from such disputes shall be the local court competent for our main seat.
7.2 A partial invalidity of the agreement does not influence the validity of the rest regulations and agreements.
Spoerry 1866 AG / Flums, 01.11.2022