General Terms of Purchase, Sale and Delivery

General Terms of Purchase

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 and purchase agreements made by Bortex Clothing Industry Company Limited (C-2371) of A11, Industrial Estate, Marsa, Malta, hereinafter referred to as “THE BUYER” from its supplier, hereinafter referred to as “THE SELLER”.

1. All waivers, modifications or amendments to the Contract shall be valid only if agreed upon mutually and in writing.  Agreements made by word of mouth or telephone shall become binding only if confirmed by the Buyer in writing within five (5) working days. Any waiver shall be limited to the circumstances or event specifically referenced in the written document and shall not be deemed a waiver of any other term of the Contract or of the same circumstance or event upon any recurrence thereof.
2. This Contract shall be deemed to be concluded upon the placing of a Purchase Order issued by the Buyer for the supply of Goods by the Seller, which Purchase Order shall be a written or electronic document, and may include particular shipping instructions and/or other specifications required by the Buyer for the Goods, as well as the relative Delivery Date.
3. The Buyer shall not be bound by the Contract unless the Purchase Order is acknowledged, authorised and returned by the Seller within two (2) working days from when the Order is placed.  In all cases, Orders shall be deemed to be concluded as subject to the present Terms, to which the Seller hereby accedes.
4. The place of performance shall be Malta, irrespective of any other consideration such as delivery, payment or transfer of title in the Goods.
5. The Seller warrants that the Goods:
   1. Shall be manufactured, produced, packaged, labelled, furnished and delivered to the Buyer in full and complete compliance with all applicable laws and regulations and in accordance with the highest standards and best practices of the Seller’s industry;
   2. Shall be free from defects in materials and workmanship, and shall be merchantable and fit for their particular purpose;
   3. Shall conform to the Purchase Order and all instructions and specifications provided by the Buyer; and
   4. Shall be free from all liens, security interests and encumbrances of any type whatsoever.
6. The Buyer shall have the right to access and audit the Seller’s facilities, books, records, goods and services related to the Contract and the Goods.  In particular, the Buyer shall have the right to carry out ethical audits and to inspect the Goods during manufacture, processing or storage at the premises of the Seller or any third party.  If the Buyer indicates any shortcomings, the Seller shall take all steps necessary to ensure compliance.
7. The Seller shall adhere to the quantities indicated in the Purchase Order.  In the event of excess quantities, the Buyer shall not be bound to pay for the excess. The excess shall remain at the Seller’s risk and the Buyer reserves the right to return the excess, and seek compensation in relation to the storage, handling and return of same.
8. The Seller shall ensure that the Goods are marked in accordance with the Purchase Order, properly packed and secured so as to reach their destination in an undamaged condition. 
9. The Seller shall observe the time and place of delivery indicated by the Buyer in the Purchase Order.  In the event of late delivery of the Goods without the prior written consent of the Buyer, the Buyer shall be entitled to claim damages in relation to the delayed delivery. The Buyer also reserves the right to withhold any payment or part thereof, as well as cancel the Order and/or reject or return the Goods.
10. Whenever the Buyer allows the Seller to postpone the delivery of Goods, the Contract shall still be deemed as binding, and the Seller shall be bound to pay damages in relation to the postponed delivery.
11. The Seller shall ensure that each delivery is accompanied by a prominently-displayed delivery note indicating the Purchase Order number, date of Purchase Order, and the number of packages and their contents.
12. The Buyer shall not be deemed to have accepted the Goods until it has had a reasonable time to inspect them following delivery. Such inspection may be carried out upon a reasonable sample of the Goods, and the Buyer may revoke its acceptance if the Goods are subsequently found to be defective. Upon rejection or revocation of any Goods, the Buyer shall, at its discretion, be entitled to terminate this Contract or to insist upon a prompt replacement of the Goods by the Seller.  All additional costs shall be borne exclusively by the Seller.  Should the Seller fail to collect any defective Goods within the time specified by the Buyer, the Buyer shall be entitled, at its discretion, to return them to the Seller at the risk and cost of the Seller, or alternatively to dispose of them as it deems fit and seek compensation in relation to storage, handling and disposal of the Goods.
13. Risk of damage to or loss of the Goods shall pass to the Buyer only upon delivery at the address specifically indicated by the Buyer in the Purchase Order.
14. The Seller is entitled to invoice the Buyer only upon the delivery of the Goods, and each invoice shall quote the number of the Purchase Order.
15. The Goods shall be invoiced at the price of the Goods as set forth in the Purchase Order. The price shall include all shipping and insurance costs, including without limitation, packing, crating, freight costs, as well as all taxes, customs duties, customs fees and all other charges due in respect of the Goods.  No increase in price shall be made irrespective of any increase in material, labour or transport costs, fluctuation in rates of exchange, or any other cause.
16. Payment of the price shall be due sixty (60) days from date of invoice, provided delivery of the Goods is made within the agreed time-frames.
17. Should the Seller be in breach of any of its obligations, the Buyer shall be entitled, at its discretion, to any or all of these remedies, concurrently or consecutively as the Buyer deems fit: –
    1. require the Seller to attend a meeting of the representatives of both parties in order to discuss the complaint and amicably agree on the way forward;
    2. give the Seller the opportunity to remedy any non-conformity or defect in the Goods, including by supplying replacement goods within a set time frame, at the Seller’s expense;
    3. demand a discount of not less than 10%;
    4. carry out any work necessary to make the Goods comply with the Contract, at the Seller’s expense;
    5. reject the Order in whole or in part, and demand compensation for expenses and damages from the Seller;
    6. terminate the Contract without any obligation whatsoever with respect to the Goods not yet delivered to the Buyer at the time of such termination;
    7. withhold payments until the Seller shall have adhered to its obligations, as well as payments equivalent to the expenses or damages incurred by the Buyer in connection with the Seller’s non-conformity;
    8. exercise any other right or remedy provided in terms of these General Terms and/or Maltese Law.
18. The Seller shall treat the existence and details of this Contract, together with all information that is not publicly available concerning the business and affairs of the Buyer, as strictly confidential and agrees to impose the same duty of confidentiality upon its employees or any other person or company with whom it deals in relation to the Contract.
19. Title in the designs, drawings, models or intellectual property related to the Goods where these have been supplied by the Buyer shall pertain exclusively to the Buyer, and the Seller shall strictly respect such rights.
20. The Seller shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses awarded against or incurred or paid by the Buyer as a result of or in connection with any claim, action or allegation that the Goods infringe, or their importation, use or resale infringes the patent, copyright, design right, trade mark or other intellectual property right of any other person.
21. All notices are to be given to the Buyer in writing at the address indicated above.  Any notice to be delivered to the Seller shall be delivered at the address indicated by the Seller on its invoices.
22. The invalidity or unenforceability of any of the Clauses of the General Terms shall in no manner affect the validity or enforceability of any of the other Clauses of these General Terms.
23. The Contract, the General Terms and all legal relations arising therefrom shall be exclusively governed by Maltese Law.
24. 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.

General Terms of Sale and Delivery

Unless otherwise agreed between both parties in writing, the following General Terms shall apply to any contract of sale, 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 waivers, modifications or amendments to the Contract shall be valid only if agreed upon mutually and in writing.  Agreements made by word of mouth or telephone shall become binding only if confirmed by the Seller in writing within five (5) working days. Any waiver shall be limited to the circumstances or event specifically referenced in the written document and shall not be deemed a waiver of any other term of the Contract or of the same circumstance or event upon any recurrence thereof.
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 hereby accedes for all intents and purposes of Law.
3. The place of performance shall be Malta, irrespective of any other consideration such as delivery, payment or transfer of title in the Goods.
4. The Buyer is bound to give the specifications of the Goods ordered, without any ambiguity, in good time.
5. The Seller reserves the right to a 10% variance either way in the quantities ordered. 
6. 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) working days, without the need for any declaration to be made to this effect. Cases of force majeure including acts of third parties or act of God shall entitle the Seller, at its discretion, to extend the delivery time by the duration of such event.  Upon expiry of the grace period or extended period (if any), the Seller shall have the right to rescind the Contract.  The Buyer shall not be entitled to any compensation for loss or damages arising from delayed delivery.
7. Whenever the Seller allows the Buyer to postpone the delivery of goods, 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 all cases, pass to the Buyer immediately the Goods are ready for delivery.
8. 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.
9. 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: –
   1. remove the defects ascertained within a reasonable period; or
   2. effect a new delivery in replacement of the defective one, upon the same terms and conditions; or
   3. grant a discount which shall in no case exceed 10% of the price of the Goods.
10. The Buyer shall not be entitled to any compensation for loss or damages arising from defective delivery.
11. The Buyer shall never acquire the title in the designs, drawings, models or intellectual property related to the Goods.
12. 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.
13. 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.
14. Credit Terms and any benefit of time shall also be forfeited should there be any change in the circumstances of the Buyer, should any previously unknown fact come to the knowledge of the Seller, or the Seller reasonably believe that the Buyer may be facing bankruptcy, insolvency, administration or any other form of insolvency procedure.
15. Notwithstanding delivery and the passing of risk in the Goods, in case where payment has not been effected by the Buyer, 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 made.
16. The Seller shall also retain title and property of the Goods, including full legal and beneficial ownership, until full settlement of the purchase price of any other goods, 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 made.
17. The Buyer is not entitled to pledge the Goods or to assign them as security.  Moreover, where the Contract is made under CMT terms, the Buyer warrants that all materials delivered to the Seller for production, are fully paid up and that no other third parties have any claim or title on the materials so delivered for production.  The Buyer shall indemnify the Seller fully for any damage it may suffer as a result of non-adherence by the Buyer to this obligation.
18. Until title to the Goods passes in terms of Clauses 15 and 16, the Seller shall have an irrevocable authority hereby granted by the Buyer, to retake, sell or otherwise deal with and/or dispose of all or any part of the Goods, without any obligation to de-label such Goods – the Buyer shall not be entitled to any compensation in respect of any intellectual property rights or infringements in this connection.  In connection with this authority being granted to the Seller, the Seller and its agents and employees shall be entitled at any time and without the need to give notice, to enter upon any property upon which the Goods or any part thereof may be stored, or upon which the Seller reasonably believes them to be kept.
19. This Contract shall be immediately terminated upon bankruptcy or insolvency of the Buyer, or upon the Buyer going into administration or any other form of insolvency procedure.  The Seller shall also be entitled to terminate this Contract if it reasonably believes that the Buyer may be facing bankruptcy, insolvency, administration or any other form of insolvency procedure.  In this case, payment for all Goods shall become immediately due and payable in spite of any Credit Terms or benefit of time, and the Buyer or any Insolvency Practitioner appointed in this regard, shall be bound to give an inventory of the Seller’s Goods held by the Buyer, and to deliver these Goods up to the Buyer immediately.
20. Should the Buyer fail to perform any of its obligations, the Seller shall be relieved from its relative obligations, and shall be entitled to immediately terminate 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.
21. All notices are to be given to the Seller in writing at the address indicated above.  Any notice to be delivered to the Buyer shall be delivered at the address indicated by the Buyer for invoicing purposes.
22. The invalidity or unenforceability of any of the Clauses of the General Terms shall in no manner affect the validity or enforceability of any of the other Clauses of these General Terms.
23. The Contract, the General Terms and all legal relations arising therefrom shall be exclusively governed by Maltese Law.
24. 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.