Unless otherwise agreed upon between both parties in writing, the following General Terms shall apply to any contract of sale and purchase, hereinafter referred to as “THE CONTRACT”, and shall form an integral part of all offers, confirmations of orders, sales agreements and deliveries made by Bortex Clothing Industry Company Limited (C-2371) of A11, Industrial Estate, Marsa, Malta, hereinafter referred to as “THE SELLER” to its customer, hereinafter referred to as “THE BUYER”.
1. All modifications or amendments to the present General Terms shall be valid only if agreed upon mutually, in writing, on or after the date of the present. Agreements made by word of mouth or telephone shall become binding only if confirmed by the Seller in writing within five (5) working days.
2. The Contract shall be legally concluded only after having been confirmed in writing by the Seller, and holds good to the extent of said confirmation only. In all cases, orders shall be deemed to be concluded as subject to the present General Terms, to which the Buyer shall be deemed to have acceded and adhered.
3. The Buyer is bound to give the specifications of the goods ordered, without any ambiguity, in good time.
4. All delivery times are approximate, and partial deliveries are admissible. The Seller shall, to the best of its ability and according to circumstances, observe the time and place of delivery agreed upon. In all cases, the Seller shall be entitled to a grace period for delivery of eighteen (18) days, without the need for any declaration to be made to this effect. Cases of force majeure or act of God shall entitle the Seller to extend reasonably the delivery time by the duration of such event. Upon expiry of the grace period or extended period as aforesaid, the Seller shall have the right to rescind the Contract.
5. Whenever the Seller allows the Buyer to postpone the delivery of goods, the Contract shall still be deemed as binding, and the Seller shall have the right to claim interests on the price, as well as the expenses related to delayed delivery. Risk for the goods shall, in such cases, pass to the Buyer immediately the goods are ready for delivery.
6. All invoices are made out on the day of dispatch of goods. Credit Terms, if any, shall apply from the date of invoice. Payments shall not be deemed completed until the relative funds are effectively deposited into the account indicated by the Seller. The Buyer shall not be entitled to withhold any payment or part thereof, for any reason whatsoever.
7. Should Credit Terms or payments by instalments have been agreed upon, such credit terms or benefit of time shall be forfeited in respect of any Contract pending between the parties, and the whole price or unpaid balance shall become immediately due if the Buyer exceeds the Credit Terms or delays the payment of any one (1) single instalment by a period in excess of seven (7) days. The Buyer shall also be bound to pay damages and interests according to Law.
Credit Terms and any benefit of time shall also be forfeited should there be any change in the circumstances of the Buyer, or should any previously unknown fact come to the knowledge of the Seller.
8. Notwithstanding delivery and the passing of risk in the goods, in case where payment has not been effected by the Buyer as aforesaid, the Seller shall retain title and property of the goods, including full legal and beneficial ownership, until full settlement of the price, including penalties, interests, collateral charges and any other sum which may become due under these General Terms, is effected.
Moreover, and without prejudice to the above, the Seller shall retain title and property of the goods, including full legal and beneficial ownership, until full settlement of the purchase price of any other goods or services, previously or subsequently supplied by the Seller to the Buyer, including penalties, interests, collateral charges and any other sum which may become due under the General Terms, is effected.
9. Should the Buyer fail to perform any of its obligations, the Seller shall be relieved from its relative obligations, and shall be entitled to cancel this and any other existing contract between the parties, and withhold any further deliveries under this Contract, or under other contracts entered into between the parties, and this without the Seller contracting any liability whatsoever.
10. The Buyer is not entitled to pledge the goods or to assign them as security.
11. The place of performance shall be Malta, irrespective of any other consideration such as delivery, payment or transfer of title in the goods.
12. Any claim for defects in the goods must be made in writing, by registered letter, by not later than seven (7) days after arrival of the goods at destination, failing which the Buyer’s rights in connection with any claimed defective delivery shall be extinguished. Notice shall be corroborated by evidence, including a sample of the defective goods and an official certificate attesting the existence of defects.
13. If so required by the Seller, the Buyer shall, within a reasonable time, arrange a meeting of the representatives of both parties at the place where the goods are located, in order to discuss the complaint. If the complaint is justified, the Seller shall in its absolute discretion: –
(i) remove the defects ascertained within a reasonable period; or
(ii) effect a new delivery in replacement of the defective one, upon the same terms and conditions; or
(iii) grant a discount which shall in no case exceed 10% of the price of the goods.
The Buyer shall not be entitled to any compensation for loss or damages arising from defective delivery.
14. The Buyer shall never acquire the title in the designs, drawings, models or intellectual property related to the goods.
15. The Seller reserve the right to a 10% variance either way in the quantities ordered.
16. All notices are to be given to the Seller by means of registered mail at the address indicated above. Any notice to be delivered to be Buyer shall be delivered at the address indicated by the Buyer for invoicing purposes.
17. The Contract, the General Terms and all legal relations arising therefrom shall be exclusively governed by Maltese Law.
18. The invalidity or unenforceability of any of the Sections of the General Terms shall in no manner affect the validity or enforceability of any of the other Sections of the General Terms.
19. All disputes which might arise out of the present Contract or in connection therewith shall be settled by mutual agreement. If the dispute cannot be amicably settled, it shall be submitted to the exclusive jurisdiction of the Maltese Courts.