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Trader Terms and Conditions
The following general terms and conditions of sale, delivery, and payment (hereinafter referred to as “terms and conditions”) apply only in relation to intermediaries (hereinafter referred to as “customer”). We work, deliver, and serve in principle solely on the basis of the following terms and conditions, unless explicitly otherwise agreed in writing elsewhere.
Our terms and conditions are valid exclusively for all present and future business dealings with our customers, and also apply in later contracts if they are not specifically referred to. We do not recognise terms and conditions of our customers that are contrary or deviate from our terms and conditions unless we have explicitly agreed to their validity in writing. Any reference of the customer to their terms and conditions is hereby repudiated. Accordingly, our terms and conditions are also valid without reservation in the event that we have delivered the goods to the customer even when we are aware of contrary or deviating terms and conditions of customers; our terms and conditions are assumed with the unconditional acceptance of our terms and conditions by the customer.
Our terms and conditions are valid for all contracts, deliveries and other services including consultation services according to § 310 paragraph 1 sentence 1 of the German Civil Code (BGB), i.e. individuals or legal persons or partnerships with a legal personality who act in fulfilment of their commercial or self-employed professional activities. They are not valid when the customer is the end user. Written and verbal orders as well as verbal agreements or verbal additional agreements are only binding when they are confirmed either in writing or by sending the goods and comply with the agreed alterations. Otherwise, our offers are subject to change.
2. Price and payment conditions
Provided that it is not stated otherwise in the order confirmation, all of our prices are quoted ex Berlin. The offered purchase price is exclusive of legal consumption tax as well as costs for packaging, transport, insurance, tax, or other public charges.
Unless the contract confirmation states otherwise, invoices are due without deduction four weeks after the delivery of the wares. A discount of 3% off the net value of the goods will be granted if payments are made within 14 days of the invoice date.
If the payment is later than 30 days after the due date or of an equivalent request to pay, then the outstanding payment will be charged interest at 8% above the valid basis interest rate (§ 247 BGB). The assertion of further damages is not excluded.
Before the full payment of the amount due including interest and any costs, we are not obliged to make any further contracted deliveries. Offsetting our claims through enforcement of the right of retention is only possible if undisputed or recognised by us, except in the case that the customer’s counterclaims have been found to be legally binding.
In as far as we grant one off price discounts, these are hereby not binding for future deliveries. This is particularly valid when a customer who has been granted a price discount misuses this discount in the way that these wares are then on-sold at a price significantly lower than the normal sales price.
3. Delivery and receipt
The contract confirmation is decisive regarding the delivery contents and the delivery deadline. Unless stated otherwise in the contract confirmation, delivery is agreed ex Berlin. Accordingly, the agreed delivery day is the day it is sent ex work. The fulfilment of our delivery conditions is subject to the customer’s prompt and orderly fulfilment of their obligations. We reserve the right to plead non-performance of the contract.
In the event of justified doubts about the customer’s creditworthiness or solvency and in particular in the case of payment default, we are entitled – without prejudice to our other rights – to demand security or advance payment for outstanding services or deliveries, or to declare immediately due all claims arising from the business relationship, or after an adequate grace period to withdraw from the contract or demand compensation. We are authorized to terminate the contract without notice in the case of an application to open insolvency proceedings against the customer. In the case of force majeure or other reasons stopping us from delivering as agreed in a binding contract, such as operational disruptions, strikes, lock outs, power supply problems - but not in the case where we are responsible for the delay - we will immediately inform the customer. At the same time the delivery deadline will be extended for the corresponding duration of such measures or hindrances and as a consequence so will the contractual relationship. Should, in such a case, it be foreseeable that the delivery cannot be carried out by us within at the latest four months after the original delivery date, then both us or the customer can pull out of the contract (fully or in part); however, in this case, claims for damages will be excluded.
If the customer delays delivery or otherwise culpably breaches duties of cooperation, we will be entitled to demand that any losses we bear as a result, including additional expenses, be compensated. In such a case, the risk of accidental loss or deterioration of the goods will pass to the customer at the moment at which their delay of delivery begins. The right to make further claims remains unaffected.
In the case where we default, the customer can set an adequate grace period of a minimum of two weeks, after the passing of which they will refuse to accept delivery. Should the delivery not be carried out within this grace period, the customer is entitled to withdraw from the contract.
Our liability – in accordance with the legal provisions – remains unaffected in so far as the delay in delivery is due to intentional or grossly negligent breach of contract. The liability for damages is therefore however limited by foreseeable, typically occurring damages.
4. Shipping, shipping costs, and insurance
Unless the contract confirmation says otherwise, the delivery is agreed to “ex Berlin”; in this respect, the shipping of all packages is at the customer’s risk. We are entitled to carry out partial delivery. The transportation costs are borne by the customer. Transportation packaging and all other packaging are non-returnable, in accordance with packaging regulations. The customer is obliged to deal with the packaging disposal at their own costs.
If the customer wishes, the delivery can be covered by transportation insurance. The costs of this are to be borne by the customer. The choice of the mode of dispatch and dispatch route is at our discretion, unless agreed otherwise. The wishes of the customer will be taken into account where possible, though this does not imply that the customer is entitled to change the delivery place or has a right to a particular transportation mode.
For orders with an invoice value of less than 100.00 EUR, a minimum quantity surcharge of 5.00 EUR will be charged.
5. Liability for defects, complaints
For customer warranty claims to be valid, the customer is required to have properly complied with the legal obligations to inspect and notify of defects in accordance with § 377 HGB. The seller must be notified of any defects discovered during routine inspection within two weeks of receipt of the goods; other defects must be notified within four weeks of discovery. The notification must be in writing and must include an exact description of the nature and extent of the fault. Insofar as the customer takes this into account, we guarantee that the wares supplied by us are free from defects. This holds in principle for a year from the delivery of the goods. In the case of defects in our sold goods, we will fulfil this guarantee within an appropriate amount of time by repairing or replacing (supplementary performance) the goods. If the guarantee obligation cannot be fulfilled through ( a minimum) of three supplementary performance attempts within a reasonable period or if the repairing of the goods is for any other reason not possible, then the customer can in principle can demand a reduction in payment of the purchase price (discount) or cancel the contract (withdrawal), at their discretion. In the case of a slight deviation from the agreed quality as well as in the case of a deviation in the characteristics that the product was advertised by that the prevailing opinion considers minor or will have no effect on the intended use of the product, as well as in the case of a minor material defect that does not impact on the goods suitability for intended or ordinary usage, then the customer cannot withdraw from the contract (withdrawal) but at most can reduce the purchase price, provided there is a warranty on our side.
Should the restrictions laid out above not apply and should the customer after the failure of supplementary performance therefore choose because of a material defect or defect in title to withdraw from the contract, they are not entitled to any additional damage compensation.
In so far as the customer asserts a compensation claim after failed supplementary performance, the goods shall remain with the customer if this is reasonable. Furthermore, the value of the compensation claim is limited to the difference in value between the purchase price and the damaged wares. The latter does not apply if we are fraudulently responsible for a breach in contract. For damage claims clause 5 is valid. Further claims from the customer for defects are excluded.
6. Liability limitations
In the event of a slightly negligent violation of essential contractual obligations, our liability is limited by the type of wares and to foreseeable and typical damages associated with the contract. Liability is excluded where there is a slightly negligent violation of minor contractual obligations; this also applies for damages related to financial losses or loss of profit. This also applies to strict liability for non-essential contractual obligations. This shall also apply to slightly negligent breaches of obligations on the part of our legal representatives or assistants. Our obligation to provide compensation is, in as far as it legally required and the above is not contradicted elsewhere, limited to the invoice value of our wares directly involved in the incident causing the damage.
Apart from that our liability for damages is excluded. In this respect, we bear no liability for damages not directly manifest in the goods delivered by us.
The aforementioned limitations to liability shall not apply for claims to damage from injury to life, limb, or health or from gross negligence or to claims in accordance with the Product Liability Act (ProdHaftG).
Any damage claims expire one year after the start of the statutory start of the limitation period, unless we are charged with intent or gross negligence or mandatory legal provisions lead to another period.
7. Title retention
The wares delivered by us remain in our ownership until all claims stemming from the business relationship with the customer have been paid, including interest and any other costs. In the event of an open account, the retained title should be regarded as security for the balance. The customer is obligated to treat the wares with care.
The customer is obligated to store and mark the reserved goods separately. They are obliged to protect those goods from fire, water damage, break in, and theft at their own cost. The customer assigns in advance any claims against insurance. This assignment is hereby accepted by us.
The customer must immediately inform us if a third party reserves property rights, such as for example in the event of an attachment. The customer must also immediately let us know if they change home or business location or move the goods.
The customer shall bear all costs in connection with discharging the seizure and recovering the delivered goods if they have not already been confiscated by a third party.
In the case of a customer’s conduct that is in violation of the contract, in particular in the case of being arrears in payment or in the case of a breach of an above obligation, we are entitled to withdraw from the contract and demand return of the goods.
The customer is entitled to process the retained goods during normal business operations so long as they are not in default of payment. Pledging or assigning collateral is not permissible. With respect to the goods under reservation of title, the customer assigns for reasons of security the full extent of claims arising from further resale or for any other legal basis (insurance, prohibited act). Upon default, cessation of payment, or insolvency proceedings by the customer or one of their creditors we are entitled, not withstanding any further reaching rights, to retake possession of the wares subject to retained ownership either directly ourselves or through authorised persons and otherwise sell them, regardless of where the goods are located. The customer is obligated to hand over to us the goods subject to retained ownership and provide us with all necessary information to allow us to exercise our rights.
In the event that the law in the country to which the goods to be delivered are located does not allow a reservation of title or allows only limited reservation of title, we are entitled to reserve other rights regarding the goods to be delivered. The customer is obligated to carry out all measures (e.g. registration) for the realisation of retention of title or the other rights in place of retention of title, and to work to protect these rights.
8. Prohibition of assignment
The customer is not entitled to transfer rights or claims to a third party or to assign them to a third party.
9. Place of performance, place of jurisdiction, and the applicable law
The place of performance for all obligations of both contracting parties is Berlin, unless otherwise stated in the contract confirmation. However, we are also entitled – should we wish - to bring a suit against the customer in their own head office location. Apart from that, the Federal Republic of Germany’s substantive law shall apply exclusively, excluding the conflict of law rules of international private law and the UN Convention on Contracts for the Sale of Goods from 11.04.1980 (CISG). This also applies if the firm is headquartered overseas. All statutes, rules, and other legal norms cited in this document refer to the German legal system, unless expressly stated otherwise.
10. Other provisions
If these terms and conditions are made known to the customer in the language of the concluded contract (the contract language), or in another language, this has been done only for the purpose of improved understanding. In the case of differing interpretations, the contract language version shall be binding.
Should a provision in these terms and conditions or a provision in other agreements between the customer and us be unworkable, the effectiveness of all other provisions remain unaffected.
Current version, valid from October 2013, tomcap Berlin, Evelin Mauff, Dunckerstrasse 14, 10437 Berlin Germany, email@example.com, www.tomcap.de