General business conditions and terms of sale Appel Promotion, Brühl:

 

Article 1. General remarks - scope

1. Our sales conditions will apply exclusively; we will not acknowledge terms and conditions stipulated by the buyer that are contrary to, or differ from, our sales conditions unless we have expressly agreed in writing to their application. Our sales conditions will apply even if we deliver unconditionally to the buyer in the knowledge that the buyer’s terms and conditions are contrary to or differ from our sales conditions.
2. All agreements made between us and the buyer for the purpose of executing this contract, are set forth herein in writing.

 

Article 2. Quotation - quotation documents - conclusion of contract

1. If this order qualifies as a quotation in accordance with Article 145 of the German Civil Code (BGB), we can accept it within a period of 2 weeks.
2. All our quotations are subject to confirmation. Declarations of acceptance and orders will be legally binding only if confirmed by us in writing. The particulars in the order confirmation on the scope of delivery, appearance, performance, measurements and weights are to be considered approximate and do not constitute guaranteed features.
3. We and/or our suppliers as the case may be, reserve the ownership rights and copyrights to illustrations, drawings, calculations, tools, printing material, templates, samples and other documents even if the costs of producing these documents and tools are billed to the client. This also applies to written documents described as "confidential". Before passing these on to third parties, the buyer requires our express written consent.
4. The client shall bear sole responsibility for printing material, films, printing plates and other documents provided by the client. Once the client has issued approval for printing, this will be binding. In the event that the client does not object within three days to a proof sent to the client, said proof will become binding.
5. The client shall be liable for ensuring that the material provided by the client is free from third-party rights. Upon placement of the order the client will release us from all claims that may be asserted against us for any infringement of rights. We are not obliged to accept orders or may withdraw from orders entailing an infringement of third-party rights or harbouring danger of such infringements.
6. We shall be entitled to make deliveries of up to 10 % less or more than the goods ordered. In the case of orders for less than the minimum quantities quoted in catalogues or advertising brochures we reserve the right to levy a separate handling charge or minimum order surcharge.
7. In the event that our suppliers fail to deliver or deliver late and in case of force majeure we shall have the right to withdraw from the contract. In such cases the client will not be entitled to claims for compensation.

 

Article 3. Prices - payment terms

1. Unless otherwise indicated in the order confirmation, our prices are “ex forwarding point”, excluding packaging, freight, postage, insurance and other shipping costs, which will be invoiced separately.
2. The statutory Value Added Tax is not included in our prices; it will be shown separately on the invoice in the statutory amount on the date of invoicing.
3. The deduction of discounts will require a separate written agreement.
4. Unless otherwise indicated in the order confirmation, the purchase price will be due for payment net (without deductions) within 30 days of the invoice date. The statutory regulations regarding the consequences of default will apply.
5. The buyer shall be entitled to offset only if buyer’s counterclaims are legally effective, undisputed or acknowledged by us. The buyer will moreover be authorised to exercise a right of retention only insofar as buyer’s counterclaim rests on the same contractual relationship.
6. We reserve the right to make delivery to new customers contingent on payment in advance. In the event that deliveries or part deliveries are not paid for punctually we reserve the right to defer delivery on current or new orders or to make delivery contingent on payment in advance.
7. If a client refuses to take delivery of a duly ordered consignment of goods ready for shipment even after having been granted a reasonable grace period, we shall be entitled at our discretion to demand fulfilment of the contract or to withdraw from the contract and to claim compensation equal to 25 % of the value of the order (excluding VAT) for non-performance. The client shall reserve the right to furnish proof of lesser damage.
8. In the event of an alteration in customs duties, turnover tax, exchange rates, freight costs, insurance premiums and any other levies incurred that were not foreseeable when the order was placed, we shall be entitled to amend the price in accordance with the alteration, either in favour or at the expense of the client, without triggering a right of rescission as a result.

Article 4. Delivery period

1. The beginning of the delivery period we quote is contingent on the clarification of all technical issues. In particular, delivery periods quoted will not apply until we are in receipt of the full documents, data and other performances to be rendered by the client.
2. Compliance with our delivery commitment is further contingent on punctual and due fulfilment of the buyer’s commitments. We reserve the right to lodge a plea for non-fulfilment of the contract.
3. If the buyer defaults on acceptance or culpably violates other duties to cooperate, we will be entitled to demand compensation for such damage as we incur thereby, including any additional expense. We reserve the right to more extensive claims.
4. Inasmuch as the prerequisites set out in Para. (3) are given, the risk of accidental loss or accidental deterioration in the goods purchased will pass to the buyer at such time as the buyer defaults on acceptance of delivery or on the payment of receivables.
5. We shall be held liable in accordance with the statutory provisions insofar as the delay in delivery is due to a deliberate or grossly negligent breach of contract for which we are responsible or to a breach of material contractual obligations; we shall be deemed liable for any fault on the part of our representatives or vicarious agents. Insofar as the delay in delivery is not due to a deliberate breach of contract for which we are to be held responsible, our liability for damages will be limited to such foreseeable damage as typically occurs.
6. We may otherwise be held liable, in the event of a delay in delivery, under a lump-sum compensation arrangement for delay up to a maximum of 15 % of the value of the delivery.
7. The buyer shall remain entitled to further statutory claims and rights.
   

 

Article 5. Transfer of risk - packaging costs - dispatch

1. Unless otherwise specified in the order confirmation, delivery is agreed "ex forwarding point".
2. If, at the client’s request, the goods are delivered to a place other than the seller’s place of performance, upon surrender of the goods the risk will pass to the forwarding agent, carrier or other persons appointed to carry out the dispatch.
3. If the buyer so wishes, we will have the delivery covered by transport insurance, the cost of which will be borne by the buyer.
4. The client will be obliged to check immediately for damage to the packaging and that the goods are free from defects.
5. The choice of the route and mode of transportation rests with us, based on the best business conditions, without liability for any more convenient type of transportation. The client must notify us of special types of transportation.

Article 6. Liability for defects

1. Claims for defects by the buyer are conditional on buyer’s having duly discharged buyer’s obligations to examine the goods and to give notice of defects in accordance with Article 377 of the German Commercial Code (HGB). Notice of defects must be given within a maximum of three workdays after receipt of the goods. No warranty of any kind will be granted for improper storage by the buyer of the goods delivered.
2. We deliver the goods ordered in merchantable quality. In the case of purchases on sample the preceding sampling will determine the standard that the quality must meet. The customer will approve changes resulting from technical innovation or further development and tolerable changes caused by manufacturing as being in compliance with the contract.
3. Where the goods purchased are defective the buyer will be entitled to cure, at buyer’s discretion, in the form of remedy of the defects or delivery of new defect-free goods. In the case of remedy of defects we shall be obliged to bear all the expenditure required for the purpose of remedying the defects, notably transport, call-out, labour and material costs, unless these are increased as a result of the goods purchased being taken to a place other than the place of performance.
4. If cure is unsuccessful the buyer will be entitled to demand either rescission or abatement, at buyer’s discretion. Returns of defective goods will be subject to our prior consent.
5. We shall be held liable in accordance with the pursuant statutory provisions insofar as the buyer claims compensation based on deliberate or gross negligence on our part, including deliberate or gross negligence on the part of our representatives or vicarious agents. If we are not accused of deliberate breach of contract our liability for compensation will be limited to such foreseeable damage as typically occurs.
6. We shall be held liable in accordance with the pursuant statutory provisions insofar as we culpably breach a cardinal contractual obligation, in which case however our liability for compensation will be limited to such foreseeable damage as typically occurs.
7. This shall be without prejudice to liability for culpable harm to life, body or health; this shall also apply to compulsory liability subject to the German Product Liability Act.
8. In the absence of any provisions to the contrary in the above our liability shall be excluded.
9. In commercial business transactions the statute of limitations for claims for defects is twelve months, calculated from the transfer of risk.
10. This shall be without prejudice to the statute of limitations in the case of delivery recourse subject to Articles 478, 479 BGB, which is five years, calculated from delivery of the defective goods.

Article 7. Joint and several liability

1. Liability for compensation going beyond that provided for in Article 6 shall be ruled out, irrespective of the legal nature of the claim made. This will apply in particular to claims for compensation arising from culpa in contrahendo, on account of other dereliction of duty or on account of tort claims to compensation for damage to property subject to Article 823 BGB.
2. Where our liability to compensation has been ruled out or limited this will also apply to personal liability to compensation on the part of our employees, workers, staff, representatives and vicarious agents.

 

Article 8. Retention of title

1. We reserve title to the goods purchased until receipt of all payments under the delivery contract. In case of breach of contract by the buyer, notably in the event of default on payment, we will be entitled to repossess the goods purchased. Our repossession of the goods purchased will constitute rescission of the contract. Having repossessed the goods purchased, we shall be entitled to realise same, the proceeds of realisation being counted towards the Purchaser’s liabilities, less appropriate realisation costs.
2. In the event of seizure or any other third party intervention the buyer shall notify us immediately in writing so that we can file legal action under Article 771 of the German Code of Civil Procedure (ZPO). Inasmuch as the third party is unable to reimburse us for the costs of pursuing legal action in and out of court subject to Article 771 ZPO, the buyer will be liable for the losses we incur as a result.
3. The buyer shall be entitled to resell the goods purchased in the due course of business; buyer shall, however, assign to us here and now all claims on the buyer’s purchasers or on third parties accruing to the buyer from resale and equivalent to the final amount of our claims specified on the invoice (including VAT), irrespective of whether the goods purchased were resold with or without further processing. Even after assignment the buyer shall still be authorised to collect this claim. This shall not affect our powers to collect the claim ourselves. We do, however, undertake not to collect the claim as long as the buyer meets its payment obligations from the proceeds collected therefor, does not fall into arrears with payment and, most particularly, provided that no application is made to institute bankruptcy, composition or insolvency proceedings or the buyer suspends payments. Should this be the case, however, we may demand that the buyer disclose to us the claims assigned and their debtors, provide all the particulars necessary for their collection, surrender the relevant documents and notify the debtors (third parties) of the assignment.
4. At the buyer’s request we shall undertake to release the collateral to which we are entitled insofar as the realisable value of our collateral exceeds the claims to be secured by more than 10 %, the choice of the collateral to be released being incumbent upon us.

 

Article 9. Sundry provisions

1. We and our suppliers shall be entitled to affix our corporate logo or company name to the goods delivered and to use the goods delivered by us for commercial purposes, notably for display on our business premises and to illustrate catalogues and brochures of all kinds.
2. We shall be entitled to save data that comes to our knowledge in connection with processing the business transaction and to pass on such data to the contracting parties whose services we enlist for processing.
3. Should any provision of these general business conditions be or become void, this will not affect the validity of the remaining provisions or the underlying contract.

 

Article 10. Place of jurisdiction - place of performance

1. If the buyer is a merchant the place of jurisdiction will be our registered office.
2. The laws of the Federal Republic of Germany shall apply; application of the United Nations Convention on Contracts for the International Sales of Goods, CISG, shall be ruled out.
3. Place of jurisdiction and place of performance shall be Mannheim.