B2B Terms and conditions

 

Annex 1 Vendor General Terms & Conditions 
(“VENDOR GTC”)

Date: January 2025

1. Definitions

Within this Agreement, all capitalized terms within quotation marks shall be defined terms and shall have the meanings ascribed to them herein.

 

2. Terms and conditions

The Company may amend the Vendor GTC during the term of this Agreement. In such a case, the Company shall provide the new Vendor GTC to the Vendor, which then apply for all future orders of the Vendor. By placing an order, the Vendor accepts the new version of the Vendor GTC.

 

3. Subject Matter of the Agreement

(1) The Company is the owner of the trademarks of the Products or has been licensed by the owner and/or licensee of the trademarks of the Products to sell and advertise the Products directly and/or indirectly in the Territory.

(2) The purpose of this Agreement is to set forth the terms and conditions under which the Vendor may purchase Products from the Company and sell the Products in the Territory.

(3) The legal relationship between the parties is exclusively based on the Term Sheet and these Vendor GTC of the Company with respect to all processes related to this Agreement. There are no conflicting, deviating or additional agreements. The Company does not recognize any general terms and conditions of the Vendor. Even if a purchase contract is executed without reservation in the knowledge of conflicting or deviating terms and conditions of the Vendor, this shall not constitute the Company's consent to their application.

 

4. Legal Position of the Vendor

(1) The Vendor may purchase the Products from the Company and may sell the Products in its own name and for its own account. The Vendor is not authorized to enter into legal transactions in the name and/or on behalf of the Company.

(2) The Vendor is an independent business and is not an employee of the Company. The Vendor is capable of assessing the financial opportunities and risks of its activities under this Agreement. The Company is therefore not responsible and/or liable for the profitability of the Vendor's business.

(3) The Company enters into this Agreement in reliance upon the ability of the current shareholders/partners and directors of the Vendor and the commitment that their personal services will be available for the performance of this Agreement. Therefore, in the event of any change in the current management, ownership or control of the Vendor or any other material change in the Vendor's circumstances, the Vendor agrees to promptly notify the Company in writing. The Vendor shall promptly provide the Company with information regarding its affairs upon request.

 

5. Limited Sales Right / Territory

(1) For the term of this Agreement, the Company grants to the Vendor the right to sell the Products in the Territory as set forth in the Term Sheet.

(2) Transactions with the following customers are excluded from the right of active selling: wholesalers and companies operating or instructing branches or other offices located outside the Territory (including through franchisees and vendors). Active selling to this group of buyers is permitted only with the prior consent of the Company.

(3) The Vendor shall not sell, distribute or otherwise make available the Products either directly or indirectly, on, through or to any third-party platforms or marketplaces (e.g., but not limited to, Amazon, Ebay, bol, Temu, Aliexpress, etc.) in any of the following locations: i) outside the Territory, ii) within the European Union (EU), European Economic Area (EEA), United States of America (USA), Canada or Mexico nor iii) any country the Company designates as restricted by providing notice to the Vendor at least three months prior to the effective date of such restriction. The Vendor acknowledges that compliance with these restrictions is critical to protecting the Company's commercial strategy and intellectual property rights.

(4) The Vendor will present any intended Internet presentation in an informative manner, will always discuss with the Company any intended Internet presentation measures prior to the implementation of such measures and, at the Company's request, will provide appropriate proof of such measures by submitting the necessary documentation. The Vendor shall sell the Products only to retailers who have the necessary knowledge, facilities, service capabilities and image.

(5) Vendor shall not, directly or indirectly, by itself or through others, actively sell or actively promote the Products in any territory outside the Territory. The Company reserves all territories outside the Territory for the sale of the Products for itself. The Vendor is also not entitled, directly or indirectly, by itself or through third parties, to establish or maintain branch offices or other representative offices for the sale of the Products outside the Territory, or to participate for this purpose in the business of third parties outside the Territory, without the prior written consent of the Company.

(6) The Company may further restrict the Territory by granting another Vendor an exclusive right to sell in at least part of the Territory. The Vendor shall ensure that the Vendor, as well as all its intermediaries, assistants and commercial buyers, shall not sell into such a restricted territory after the expiry of 3 (three) months after having received the notification. The

Company reserves the right to change the Territory, in particular to reduce it, if this is appropriate for the proper coverage of the Territory, in the event of serious, in particular significant, financial and sales policy reasons, e.g. in the event of insufficient sales efforts by the Seller despite prior warning. (7) A provision similar to this section 5 shall be imposed by the Vendor on each of its commercial buyers of the Products. At the Company's request, the Vendor shall provide the Company with the names, addresses and contact details of its commercial customers.

(8)The Vendor is obliged to take immediate and effective action, if necessary by legal means, against any of its intermediaries, assistants or commercial buyers who are in breach of this section 5.

 

6. Sales Obligations of the Vendor

(1) Vendor shall use its best efforts to promote the sale of the Products in the Territory. The Vendor undertakes to promote the Products in the Territory at its own expense and to a appropriate extent. The Vendor will discuss with the Company any intended marketing activity prior to undertaking such activity.

(2) The Vendor shall report to the Company in a timely manner on its sales activities and the general development of the market, in particular the competitive situation. The Vendor shall be responsible for complying with the rules of fair competition.

(3) Vendor shall comply with all statutory and/or governmental regulations, laws, orders, rulings and/or statutes affecting Vendor and its business and ability to sell the Products in the Territory. Vendor shall pay all taxes, license fees, permit or registration fees and other costs and charges, if any, in connection with the establishment and/or operation of Vendor's business and the sale of the Products.

(4) The Vendor undertakes to protect the interests of the Company and to refrain from doing anything that may jeopardize the Company's reputation, market position or creditworthiness or cause damage to the Company. The Vendor agrees to regularly discuss with the Company the objectives and strategies for the distribution of the Products.

(5) The Vendor shall be entitled to offset only insofar as the Vendor’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The Vendor is entitled to claim retainer rights only to the extent such rights are based on the same transaction.

(6) If the Company has provided the Vendor with a brand book or other guidelines for the promotion/presentation of the Company's brand, the Vendor shall comply with such brand book or guidelines.

 

7. Cooperation and Support Obligations of the Company

(1) The Company may, at its sole discretion, assist the Vendor to a reasonable extent by providing advertising materials (brochures, flyers, etc.). The advertising material shall remain the property of the Company. They shall be returned immediately upon termination of this Agreement, unless they have been used for their intended purpose.

(2) The Company may, at its own expense, provide the Vendor with samples of the Products in accordance with the requirements of distribution.

(3) The Company shall assist the Vendor in its work and shall always provide the Vendor with the necessary information. Information on proposed or completed changes to prices and to the delivery program of the Company belongs to such necessary information.

 

8. Delivery of the Products

(1) The ordering and delivery of the Products shall be based on individual purchase contracts to which the terms and conditions of this Agreement shall apply. The purchase contract shall come into effect only upon the Company's acceptance of the Vendor's order. The Company shall be entitled to accept any offer made by the Vendor within two weeks.

(2) The Products shall be delivered to the place specified in this Agreement based on the Incoterms 2020.

(3) Delivery is subject to the timely and proper performance of all of Vendor's obligations. Defenses based on non-performance of the contract are reserved. The Vendor shall be responsible for compliance with and fulfillment of all import and customs formalities.

(4) In the event of default in acceptance or any other breach of the Vendor's obligations to cooperate, the Company shall be entitled to claim all damages resulting therefrom, including, but not limited to, any additional expenses. The Company reserves the right to claim further damages. In such case, the risk of loss or damage to the goods shall pass to the Vendor at the time of such default or breach of duty to cooperate.

(5) The Company shall not be liable for any damages resulting from failure to deliver or delay in delivery if such failure or delay is caused by circumstances beyond its control and which it cannot overcome by using commercially reasonable efforts, including, without limitation, any form of force majeure, such as natural disasters, war, riot, pandemic, epidemic and their consequences, government intervention or disputes.

(6) The risk of loss or damage to the Products shall pass to the Vendor at the time of shipment, e.g. at the time of handing over to a carrier or shipping company.

(7) The Vendor is obliged to immediately inspect all delivered products for visible damage and to immediately report any detected damage to the Company.

 

9. Prices and Payment

(1) The Company may unilaterally change the sales prices of its products by notifying the Vendor (e.g. by means of an updated product/price list) prior to the conclusion of an individual purchase contract.

(2) The Vendor is free to determine its own selling prices and terms with respect to its buyers.

(3) Payments by the Vendor to the Company shall be made to the bank account specified in each invoice.

(4) Unless otherwise agreed in writing, payment shall be made in full (100% of the total amount) within 45 days from the date the products are shipped to the carrier.

(5) Prices are exclusive of the respective statutory VAT.

(6) As of the due date, interest will be charged at a rate of 9 percentage points above the respective base rate of the European Central Bank per annum. The Company reserves the right to claim further damages for the delay. The Company may at any time demand valuable security for future deliveries if the Vendor has not previously complied with the terms of payment. In particular, the Company may, at its discretion, require advance payment or a payment guarantee from a bank or credit insurer.

 

10. Retention of Title

(1) The Company retains title to the delivered Products until all payments have been received in full. In the event of a breach of the Agreement by the Vendor, including but not limited to default in payment, the Company shall be entitled to take possession of the Products.

(2) The retention of title shall secure all present and future claims of the Company arising from the business relationship.

(3) The Vendor shall treat the Goods with due care, maintain suitable insurance for the Goods and, to the extent necessary, service and maintain the Goods.

(4) As long as the purchase price has been paid in full, the Vendor shall immediately notify the Company in writing if the Goods become subject to third party rights or other encumbrances.

(5) Vendor may resell Products subject to the foregoing retention of title only in the ordinary course of its business. In such case, the Vendor hereby assigns to the Company all claims arising from such resale, whether or not the Products have been processed. Notwithstanding the Company's right to direct payment, the Vendor shall be entitled to receive payment for the assigned receivables. To this end, the Company undertakes not to demand payment of the assigned receivables as long as the Vendor meets all its payment obligations and is not the subject of an application for insolvency or similar proceedings or a suspension of payments. To the extent that the aforementioned securities exceed the secured claim by more than 10%, the Company shall be obliged to release such securities at its discretion upon the request of the Vendor.

 

11. Secrecy and Confidentiality

(1) Each Party agrees to keep confidential all information disclosed to it by the other Party or its Affiliates, whether orally or in writing, that is designated as confidential or that reasonably should be considered confidential, including but not limited to: trade secrets, including formulas, recipes, designs, samples, blueprints, customer lists, pricing information and marketing plans; financial information, including financial statements, projections and budgets; research and development information; and any other information not generally known to the public ("Confidential Information").

(2) This confidentiality obligation shall continue for a period of five (5) years after termination of this Agreement, but at least as long as the Confidential Information is retained.

(3) The Parties may disclose Confidential Information to their own and their Affiliates' employees, agents, contractors and consultants who need to know such information ("Representatives") in order for each Party to (i) perform its duties under this Agreement or (ii) perform its obligations in connection with this Agreement, provided that each Party shall remain liable for any disclosure of Confidential Information by its Representatives.

(4) The Parties and their Representatives may also disclose Confidential Information to the extent required by law or regulation or to any third party to whom such Confidential Information is disclosed in connection with a due diligence investigation or other transaction with such Party, provided that such third party is bound by confidentiality obligations at least as stringent as those set forth in this Agreement.

 

12. Intellectual Property Rights

(1) All intellectual property rights in the Products and related software, including but not limited to patent rights, copyrights, trademarks, trade names or other designations, and know-how, if any, are vested in the Company or its affiliates.

(2) The Vendor agrees that it will not i) challenge the Company's intellectual property rights itself or ii) encourage or assist any third party to challenge the Company's intellectual property rights in any way. If the Vendor breaches this provision, the Company shall be entitled to terminate this Agreement without notice for good cause.

(3) Vendor shall not register or obtain protection for any trademarks, trade names, social media accounts, or other designations of the Company or its affiliates, or for any trademarks, trade names, social media accounts, or other designations identical or similar to those of the Company or its affiliates, or for any intellectual property rights - to the extent that they are capable of being registered - in Vendor's name, either within or outside the Territory allocated to Vendor. Accordingly, Vendor shall not be entitled to adopt and register the aforementioned intellectual property rights and/or designations as part of its business name in the Commercial Register, any other public register or any other certification center, nor shall it use any of the Company's intellectual property as part of a domain name or social media account without prior consent of Company. In particular, the Vendor is prohibited from using the designations or the related symbols, advertising slogans or other designations or from using the trade or business secrets for products other than the Products or for other sales systems.

(4) The Company shall not be liable for any infringement of Intellectual Property Rights resulting from any use of the Products not foreseeable by the Company or from any modifications made to the Products by the Vendor or at the Vendor's request. It is the Vendor's responsibility to ensure that the Products do not infringe any third party intellectual property rights in its territory. In the event that a claim is made against the Company for infringement of an Intellectual Property Right for which the Vendor is responsible, the Vendor shall indemnify the Company on first demand against all claims by third parties and all legal costs.

(5) If, at the time of the passing of risk, there is an infringement of Intellectual Property Rights for which the Company is responsible and for which the Company is liable, the Company shall provide alternative performance as follows:

(a) modify the Products so that they no longer infringe any third party's Intellectual Property Rights and do not unreasonably impair the functioning or usefulness of the Products; or

(b) Company will replace the infringing items with Products the use of which in accordance with the Agreement does not infringe any Intellectual Property Right and is acceptable to the Vendor and its customers; and

(c) Company obtains a right of use that is consistent with the purposes of this Agreement or is otherwise appropriate. Other rights and claims for reduction, rescission and/or damages shall be limited to those set forth in this Agreement, with liability for damages limited to gross negligence or willful misconduct.

(6) The Vendor shall promptly notify the Company in writing of any infringement of intellectual property rights, trademarks and/or copyrights relating to the Products or the Company of which the Vendor is or becomes aware.

(7) The Vendor shall notify the Company in writing as soon as possible if a third party asserts or claims an intellectual property right in relation to the Products, whether judicially or extrajudicially. The Company shall be given the opportunity to state its position before any such claim of alleged infringement of intellectual property rights is acknowledged. Upon request, the Company shall be authorized to conduct the negotiations or litigation with the third party on its own account and under its own responsibility.

 

13. Warranty and Guarantee

(1) Precondition for any warranty claim of the Vendor is the Vendor’s full compliance with all requirements regarding inspection and objection.

(2) In the event of a warranty claim, the Vendor shall be entitled to alternative performance in the form of subsequent improvement or delivery of conforming goods. If such alternative performance fails, the Vendor shall be entitled to reduce the purchase price or to rescind the contract. Minor defects do not give rise to warranty claims. The Company is not liable for compliance with technical and product safety standards and other laws of countries outside the EU and/or UK. Vendors intending to sell into such other countries must check the marketability and conformity of the Products themselves.

(3) Warranty claims shall be handled exclusively in such a way that the Vendor, no later than one (1) month after the end of each quarter, shall notify the Company in writing or in text form of all warranty claims of its customers for that quarter, broken down in a comprehensible manner according to the place of purchase of the customer, the date of order and delivery as well as the name of the product concerned. The Company shall have the right to investigate the reported warranty cases at its own expense, including at the Vendor's premises, within one (1) month of receipt of such notification.

(4) If the Company determines that 10% or more of the reported warranty claims are unjustified, the Company shall no longer be obligated to perform on any of the reported warranty claims, including future warranty claims, even if they were originally justified. The Independent Warranty Promise will then be terminated with immediate effect. The Vendor shall have no past, present or future claims based thereon.

(5) In addition, the Company provides the Vendor with an independent warranty against defects in materials and workmanship in accordance with the following provisions. The warranty period is 15 years and begins at the expiry of the statutory warranty period in the country of delivery. This warranty covers components that affect the operation of the products. It does not cover external changes to the appearance of the products due to normal wear and tear, accidental damage, misuse or negligence. Furthermore, the warranty does not apply if the operating and/or installation instructions are not followed or if the product is used with accessories or spare parts not supplied by the manufacturer. In addition, the supplied battery is expressly excluded from this warranty. Lubricants, oils, maintenance and cleaning products (such as disinfectants, etc.) are also excluded from the warranty. Opening or disassembling the products or accessories will void the warranty. The warranty is also void in the event of improper installation or commissioning, damage caused by force majeure or natural disasters, in particular, but not limited to, flooding, fire or frost damage. In case of warranty, the Company will replace the product. This warranty shall apply only if the number of products covered by this warranty exceeds 0.5% of all products purchased by the Vendor from the Company. In this case, the warranty will apply only to the Products exceeding the 0.5% threshold. In order to benefit from this guarantee, the Vendor must prove all its conditions, in particular its temporal validity, by presenting its customer's proof of purchase.

 

14. Liability

(1) Unless otherwise agreed in this Agreement, the Company shall only be liable to the Vendor for damage caused by intent or gross negligence. Except in the case of intent, the Company shall not be liable for indirect damages and consequential damages, in particular not for loss of profit, interruption of production and/or interruption of operations of the Vendor or its customers. Mandatory statutory claims of the Vendor shall remain unaffected; this applies in particular to claims based on injury to life, limb or health of a person.

(2) If the damage is based on the culpable breach of an essential contractual obligation or on the breach of an obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the fulfillment of which the Vendor may regularly rely, and if the Company is responsible for this breach of obligation, the Company shall be liable in accordance with the statutory provisions. In the event of simple negligence, however, liability shall be limited to the foreseeable and typical damage.

(3) Any liability of the Company not expressly provided for above shall be excluded.

(4) If the Vendor is in culpable breach of its obligation under this Agreement, it is liable to the Company for the damage thereby caused.

 

15. Term and Termination

(1) The Agreement shall end automatically at the end of the Term as set forth in the Term Sheet and may be terminated by either Party upon the notice period set forth in the Term Sheet.

(2) Any termination must be in writing to be effective. This includes sending a scan of a signed document via e-mail.

(3) The right to terminate this Agreement for good cause shall remain unaffected. Good cause for termination by the Company shall include:

(a) an other than insignificant breach of obligations out of purchase contracts concluded in this Agreement, above all, the failure to settle outstanding purchase price receivables;

(b) serious breach of contract resulting in the loss of mutual trust or the basis of the business;

(c) Complete or partial and significant shutdown of the business with an actual or anticipated duration of more than eight (8) weeks;

(d) Failure to meet any agreed minimum order value under this Agreement;

(e) a change in control, ownership or management of Vendor.

 

16. Consequences of the Ending of the Agreement

(1) The termination and expiration of the Agreement shall not affect the purchase contracts concluded in the course of its performance, to which all the provisions of this Agreement shall apply even if this Agreement has expired. In the event of ordinary termination, the Company shall continue to supply the Vendor to enable the Vendor to perform the transactions concluded with third parties in the ordinary course of business until the expiry of the Agreement.

(2) Upon termination of the Vendor Master Agreement, the Company shall have the right, but not obliged, to take back any Contract Products not yet sold by the Vendor at the prices charged to the Company less a flat 5% deduction to cover the costs of taking back, but not more than at the current market value. The Vendor is obliged to participate in the inventory.

(3) The documents and data provided by the Company to the Vendor may no longer be used upon termination of the Agreement and shall be returned/deleted insofar as they have not been used for their intended purpose or must continue to be stored due to existing statutory provisions.

(4) The use of intellectual property rights and designations under this Agreement shall cease upon termination of this Agreement. The same applies to the use of domain names. This shall not apply to any transition period agreed to by the Company. However, the Company shall not be obliged to grant such a transition period. (5) The provisions set forth in sections 10 through 17 shall continue to apply after this Agreement terminates.

 

17. Miscellaneous

(1) All amendments and/or additions to the Agreement must be made in writing to be effective. This also applies to the waiver of the written form requirement itself. All agreements made between the parties prior to the Agreement with regard to the subject matter of the Agreement shall be canceled upon signature of the Agreement. There are no oral subsidiary agreements.

(2) Should any provision of this Agreement be invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision that comes closest to the purpose and economic result of the agreement. If the Agreement contains a loophole, a provision shall be deemed to have been agreed which closes the loophole and which the parties would have agreed if they had known of the loophole at the time of signing the Agreement, taking into account the economic purpose of the Agreement. If one of the above interpretations of the Agreement is not possible, the parties undertake to agree on an effective provision that comes as close as possible to the purpose of the Agreement and the economically intended result.

(3) German law including the United Nations Convention on Contracts for the International Sale of Goods, shall apply exclusively. The parties shall use their best efforts to settle any dispute, controversy or difference between them in relation to this Agreement by direct negotiation. The place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement and the purchase contracts concluded for this purpose concerning the contractual products is Berlin, Germany. However, the Company shall be entitled, at its discretion, to take legal action against the Vendor by submitting the dispute to any recognized court of arbitration under the rules of procedure of such recognized court of arbitration, or to a court at a place where the Vendor conducts business including the country of the Vendor’s registered office.

 

- END OF VENDOR GENERAL TERMS & CONDITIONS -

 

 

GENERAL TERMS OF BUSINESS B2B

§1 Scope of Application

Our Standard Terms of Business (STCs) for the B2B area shall apply exclusively for an entrepreneur, a legal person under public law or a special fund under public law within the meaning of Sec. 310 (1) of the German Civil Code (BGB) (hereinafter: “Contracting Party/Parties“). We do not accept conflicting terms of the Contracting Party, or terms which deviate from our General Terms of Business – even if we have knowledge of them – unless we have expressly approved of their validity in writing.

§ 2 Contracting Parties and Dealer Access

(1) We supply our products under the conditions applicable to dealers only if such dealers provide prior proof of commercial activity. The Contracting Party may sign up and register on our website https://b2b.funfactory.com using this register form. In addition, the Contracting Party must send us proof of commercial activity by post or fax.

(2) After approval, the Contracting Party shall receive dealer access to our B2B site. Among other things, this allows the Contracting Party to place orders electronically on the internet. The dealer access is protected with a password to prevent misuse. The Contracting Party shall take suitable measures to ensure that the password is not made accessible to third parties.

(3) The Contracting Party warrants the truthfulness and correctness of information it provides in the context of registration or in the context of the provision of dealer access e.g. with respect to its company, personal information and the website on which it offers our products, and agrees to inform us without delay of any changes in this information.

(4) Registration as a dealer or the granting of dealer access does not entitle the dealer to be supplied by us.

(5) We have the right to block dealer access after issuing a prior warning if the Contracting Party violates its contractual duties.

(6) The Contracting Party may terminate its dealer access at any time in writing. An e-mail to infomail@funfactoryweb.com shall suffice as notification.

(7) We may terminate dealer access observing a notice period of one month. The right to block the dealer access shall hereby remain unaffected.

§ 3 Offer and Minimum Order Value

(1) If the order is to be deemed an offer pursuant to Sec. 145 of the BGB, we may accept such offer within two weeks. A purchase agreement is formed only upon our written confirmation of the order or by shipment of the goods.

(2) If the Contracting Party orders the goods electronically, we shall confirm receipt of the order without delay. Confirmation of receipt may be combined with the declaration of acceptance.

(3) We do not accept any orders with a net value of less than EUR 250.

§ 4 Copyright

(1) The Contracting Party is entitled to use any images, text or videos (“Materials”) we provide during the business relationship, under the following conditions. This non-exclusive right of use shall apply only as long as the Contracting Party uses the Materials provided to it exclusively for advertising our products on those of its websites that it has specified on the registration form. The license shall not authorize the Contracting Party to use the Materials for advertising our products on sales portals of third parties, e.g. eBay or Amazon, or to advertise our products on websites other than those designated on the registration form. Our consent is required for any other distribution, copying or use of Materials. The Contracting Party is not permitted to grant sublicenses. Furthermore, the Contracting Party is not permitted to process the Materials provided. Our rights shall also remain fully effective after our Materials have been added to an electronic archive.

(2) We reserve the right to revoke the non-exclusive right of use at any time. This shall apply in particular if the right of use is exercised in a manner that runs counter to any of our company interests, or if the afore-mentioned conditions are not complied with.

(3) Publishers or editors of newspapers or magazines or publishers of internet newspapers or blogs shall be granted a non-exclusive right of use of Materials provided to them for the designated purpose of use. These Materials may only be used for editorial purposes, not for advertising. It is not permitted to circulate, distribute, copy or use the Materials in any other form or to alter the message of the images (montage). Any Materials used shall indicate us as owner of the rights of use. This information shall be presented in the subject list or image description. In case of use on a website, a link to our website www.funfactory.com shall appear. Use of Materials is free of charge in return for remittance of a specimen copy. If used on the internet, we shall be informed of the URL/Domain of the website.

§ 5 Prices and Terms of Payment

(1) Unless otherwise indicated in the order confirmation, prices shall be deemed ex works Bremen, excluding packaging and shipping costs (postage, freight, insurance or delivery charges) and before the addition of the statutory VAT.

(2) Cash discounts shall only be granted based on prior written agreement. Calculation of cash discounts shall be based on the day of receipt of invoice payment to our account.

(3) Unless otherwise agreed, the purchase price shall be due within 30 days after invoicing and delivery. When the above-mentioned payment period has expired, the Contracting Party is in arrears. During the period of arrears, interest on arrears at the relevant applicable statutory interest rate on arrears is due on the purchase price. We reserve the right to claim further compensation for arrears. Our entitlement to charge businesses the commercial interest on arrears (§ 353 German Commercial Code) is unaffected.

(4) The statutory provisions shall apply to default in payment. If the Contracting Party is a new customer, the first two invoices shall be paid in advance. We reserve the right to request prepayment for additional deliveries.

(5) The Contracting Party may offset counterclaims against our charges if such counterclaims are unappealable and final or if we have accepted such claims. Furthermore, the Contracting Party may exercise the right of retention to the extent that a counterclaim is based on the same contractual relationship. In the event of defects in the delivery, the Contracting Party’s counterclaims are unaffected.

(6) If the Contracting Party has not fulfilled its obligations to pay in due time despite a warning, we shall be entitled to block the dealer access, subject to further claims.

(7) If after conclusion of the contract it is discovered that our entitlement to the purchase price is threatened by the Contracting Party’s inability to pay (e.g. because of an application for the commencement of insolvency proceedings), we are entitled to cancel the contract in accordance with the legislation on refusal of performance and, where applicable, following the setting of a deadline.

§ 6 Delivery Period and Late Delivery

(1) The delivery period shall be individually agreed or stated by us upon acceptance of the order. If this is not the case, the delivery period shall be about two weeks following conclusion of the contract. Timely and correct fulfilment by the Contracting Party of its duties is a precondition of delivery. The justification of an unfulfilled contract is reserved. Part deliveries are permitted to a reasonable extent and may also be charged for separately.

(2) Insofar as we are not able to observe binding delivery periods for reasons for which we are not to blame (unavailability of the service), we shall inform the Contracting Party of this without delay and at the same time inform it of the expected new delivery period. If the service is still not available within the new delivery period, we are entitled to cancel the contract entirely or in part. We will refund any payment already made by the Contracting Party without delay. Particular instances of unavailability of the service in this sense are failure of timely delivery by our own supplier, where we have concluded a congruent covering transaction, where neither we nor our supplier is to blame or where in the individual case we are not obliged to make a purchase.

§ 7 Delivery

(1) Unless otherwise agreed, delivery shall take place FCA, which is also the place of fulfilment. The costs of dispatch (packaging, post, freight, insurance, delivery charges etc.) shall be borne by the Contracting Party.

(2) If the Contracting Party delays acceptance or is to blame for breach of any other duty to cooperate, we will be entitled to demand compensation for any losses thereby incurred by us, including any additional expenditure (e.g. storage costs).

(3) Our liability is based on statutory provisions, to the extent that the purchase agreement on which the transaction is a fixed-term transaction within the meaning of Sec. 286 (2) no. 4 of the BGB, or of Sec. 376 of the German Commercial Code. We also are liable pursuant to statutory provisions provided that the Contracting Party is entitled to assert that its interest in further performance of the contract has discontinued as a result of a delay in delivery attributable to us.

(4) We are also liable pursuant to statutory provisions if delayed delivery is attributable to intentional or grossly negligent breach of contract committed by us, our legal representative, vicarious agent or employee. To the extent that delayed delivery is not attributable to intentional breach of contract committed by us, our legal representative, vicarious agent or employee, our liability for compensation of damages shall be limited to foreseeable and typically occurring damage.

(5) We are also liable pursuant to statutory provisions if a delay in delivery attributable to us, our legal representative, vicarious agent or employee is due to culpable breach of a material contractual obligation. In such a case however, liability for compensation of damages shall be limited to foreseeable and typically occurring damage.

(6) Insofar as delay in delivery is attributable solely to a culpable breach of a non-material contractual obligation committed by us, our legal representative, vicarious agent or employee, the Contracting Party is entitled to demand a fixed-sum compensation for delay for each whole week of delay in the amount of 3% of the value of the goods to be delivered, not to exceed however 15% of the value of the goods to be delivered.

§ 8 Warranty for Defects

(1) The Contractual Party shall only exercise its warranty rights subject to compliance with the duty to inspect and make a complaint pursuant to Sec. 377 of the German Commercial Code. If a defect is discovered upon inspection or later, we are to be notified of this in writing without delay. Notification is deemed to be without delay if it is given within two weeks, with timely dispatch of the notification sufficing for observance of the deadline. Regardless of this duty of inspection and complaint, the Contracting Party must report any visible defects (including incorrect or incomplete delivery) in writing within two weeks following delivery, with timely dispatch of the notification sufficing here too for observance of the deadline. If the Contracting Party omits to conduct the correct inspection and/or report the defect, our liability for any unreported defect is excluded.

(2) Claims of defects asserted by the Contracting Party shall be time-barred after 12 months after delivery of goods we supply. This shall not apply if statutory provisions, in particular Sec. 479 (1) of the BGB, prescribes longer limitation periods.

(3) If the item purchased should be defect, we are entitled to supplementary performance either by removal of the defect or by delivering a new item free of defects, at our discretion.

(4) If we fail to remedy the defect or if the reasonable deadline for the remedy to be set by the Contracting Party has expired without success or can be dispensed with according to the legislation, the Contracting Party may cancel the purchase contract or reduce the purchase price. However, there is no right of cancellation in the event of a minor defect.

§ 9 Liability

(1) Aside from this, we are only liable for damages attributable to intentional or grossly negligent breach of contract committed by us, our legal representative, vicarious agent or employee. This shall not apply to death or injury to body or health of the Contractual Party, nor to claims based on breach of material contractual obligations. To this extent, our liability is subject to statutory provisions.

(2) Liability is limited to foreseeable, typically occurring damage, except in the case of intentional conduct by us, our legal representative, vicarious agent or employee.

(3) Claims for damages based on mandatory provisions of product liability law or other mandatory statutory provisions shall remain unaffected.

(4) Unless otherwise agreed in the aforegoing, liability shall be excluded. In particular, we exclude any liability for technical or other defects in connection with the dealer access.

§ 10 Retention of Title

(1) We retain title to the item purchased until we have received all payments due based on the business relationship with the Contracting Party. If the Contracting Party should exhibit behavior that infringes the contract, in particular in case of default of payment, we are entitled to repossess the item purchased. Our repossession of the item purchased does not constitute withdrawal from the agreement, unless we have expressly declared such. We shall be authorized to dispose of the item purchased after repossessing it. The proceeds from such disposal shall be offset against the amount due from the Contracting Party, less reasonable costs of disposal.

(2) The Contracting Party shall inform us without delay of any attachment or other access by third parties, so that we can take legal action pursuant to Sec. 771 of the German Code of Civil Procedure. To the extent that the third party is not able to reimburse us for court and other costs of a lawsuit pursuant to Sec. 771 of the German Code of Civil Procedure, the Contracting Party shall be liable for the amount due.

(3) The Contracting Party shall be entitled to resell the purchased item in the course of a normal business transaction. However, the Contracting Party hereby assigns to us all claims in the amount of the invoice (including VAT) due us accruing to it from the resale to its customer or third parties. The Contracting Party shall remain authorized to collect this claim even after assigning it. Our authority to collect the claim on our own shall remain unaffected. However, we undertake to not collect the claim as long as the Contracting Party fulfills its payment obligations with the proceeds collected without defaulting, and in particular, as long as insolvency proceedings have not been initiated or payment has not ceased. In such cases we may however demand that the Contracting Party disclose to us the assigned claims and the respective debtors, provide us with all information required to collect the debt, surrender the relevant documents and notify the debtors or third parties of the assignment.

(4) We undertake to release the security to which we are entitled if requested by the Contracting Party to the extent that the realized value of our security exceeds the value of the claims to be secured by more than 10%--we shall have discretion in the selection of security to be released.

§ 11 Data Protection

We use the data related to the order exclusively in compliance with the German Data Protection Act for processing and handling the orders. We otherwise refer to our data protection statement.

§ 12 Jurisdiction, Place of Performance and Applicable Law

(1) If the Contracting Party is a business, the place of exclusive (including international) jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Bremen. However, we are also entitled to bring legal action against the Contracting Party in the court having jurisdiction over its registered office.

(2) Unless otherwise provided for by the confirmation of the order, our registered seat shall be the place of performance.

(3) The laws of the Federal Republic of Germany shall apply, with the exclusion of the UN Convention on Contracts for the International Sale of Goods.

§ 13 Final Provisions and Severability

(1) Any changes in or amendments to our General Terms of Business shall be made in writing.

(2) If individual provisions of our General Terms of Business should be invalid or contain a gap, the remaining provisions shall remain unaffected. The parties shall undertake to agree on a legally valid provision to replace the invalid provision that comes closest to the economic intent of the invalid provision or that fills the gap.

§ 14 Additional Information

Information regarding disposal in the European Union and participation in the dual system (for disposal of packaging) can be found here.