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General terms and conditions

General Terms and Conditions

Business, Delivery and Payment Terms
XTREM Toys & Sports GmbH
Blocksbergstraße 173
66955 Pirmasens / Germany

Phone: +49 (0) 6331 / 6 08 95 0
Fax: +49 (0) 6331 / 6 08 95 19
info@xtrem-gmbh.com

Management: Marco Wagner, Amina Wagner-Ewig
VAT ID No.: DE 812780512
HRB 23326, District Court (Amtsgericht) Zweibrücken

www.xtrem-gmbh.com

§ 1 Scope of Application

  1. For all deliveries by the Seller, only the following terms and conditions shall apply. They shall also apply to all future business relations, even if they are not expressly agreed again. Any other business, delivery and payment terms of the Buyer shall not become binding even if the Seller does not expressly object to them again.

  2. Amendments, supplements and deviations from these business, delivery and payment terms shall only be effective if confirmed by the Seller in writing.

§ 2 Offer and Conclusion of Contract

The Seller’s offers, including the prices stated therein, are subject to change and non-binding. Contracts and other agreements shall only become binding upon the Seller’s written confirmation. Additions, amendments or ancillary agreements also require the Seller’s written confirmation. To the extent that sales staff or commercial agents make verbal ancillary agreements or give assurances that go beyond the written purchase contract, these always require the Seller’s written confirmation. Documents belonging to the offer, such as illustrations, weight and dimension data, shall—unless otherwise agreed—be deemed approximate only. We reserve the right to make design and color changes as well as construction changes serving technical progress.

§ 3 Delivery Terms, Delay, Impossibility of Delivery

  1. Unless special agreements have been made in writing, delivery and/or partial delivery shall be carriage-paid (frachtfrei) to a German railway receiving station or prepaid by other means for orders from € 2,600.00 net. The Seller is entitled to choose the cheapest shipping route and/or shipping method. If a different route or method is stipulated, any additional costs incurred shall be charged. Express freight and express shipments are sent freight collect.

  2. The risk shall pass to the Buyer as soon as the shipment has been handed over to the person carrying out the transport or has left the Seller’s warehouse for the purpose of dispatch. This also applies to prepaid deliveries. The goods may be insured at the Buyer’s request and expense. If delivery of the goods is delayed at the Buyer’s request or for reasons for which the Buyer is responsible, the goods shall be stored at the Buyer’s cost and risk. In this case, the notice that the goods are ready for shipment shall be equivalent to shipment.

  3. Delivery dates are only binding for the Seller if confirmed in writing.

  4. The expiration of specific delivery periods and dates does not release the Buyer—who wishes to withdraw from the contract or claim damages for non-performance—from setting a reasonable grace period for performance and declaring that performance will be refused after expiry of such period.

  5. Partial deliveries are permitted within reasonable limits.

  6. The delivery period shall be reasonably extended—also within a delay—in cases of force majeure and all unforeseeable obstacles occurring after conclusion of the contract for which the Seller is not responsible, insofar as such obstacles demonstrably have a significant influence on delivery of the sold goods. This also applies if such circumstances occur at the Seller’s suppliers and their subcontractors or upstream suppliers. The Seller shall inform the Buyer as soon as possible of the beginning and end of such impediments.

  7. Delivery periods shall be extended by the period during which the Buyer is in default of its contractual obligations—within an ongoing business relationship also arising from other contracts. The Seller shall not be responsible for delay or non-delivery (impossibility) as long as neither it, its vicarious agents, nor its upstream suppliers can be accused of fault. Otherwise, the Seller shall be liable in accordance with statutory provisions. If damages are owed, any claim for damages to which the Buyer is entitled shall be limited to the loss foreseeable at the time of conclusion of the contract, but at most 10% of the value of that part of the total delivery which, due to the delay or non-delivery, cannot be used in time or in accordance with the contract. This limitation shall not apply where the Seller is mandatorily liable in cases of intent or gross negligence.

  8. The Seller shall under no circumstances be liable for deliveries delayed or not made (impossibility) due to fault of its upstream suppliers.

§ 4 Creditworthiness

By accepting orders, the Seller assumes the Buyer’s creditworthiness. If events occur at the Buyer which cast doubt on its creditworthiness, or if such circumstances existing prior to contract conclusion become known only later, the Seller may withdraw from the contract or demand immediate cash payment. Proof of such events shall be deemed provided by information from a credit agency or bank, without the Buyer being entitled to demand submission of the information or naming of the institution. If such circumstances exist with a party to a bill of exchange, the Seller may demand immediate cash payment upon return of the bill of exchange.

§ 5 Invoicing, Prices, Payment and Default

  1. The Seller’s deliveries shall be invoiced with the date of dispatch.

  2. Prices are always plus VAT at the applicable statutory rate.

  3. Unless expressly agreed otherwise, invoices are due for payment as follows:
    a) payment within 10 days from the invoice date: 2% cash discount;
    b) payment within 14 days from the invoice date: net, without deduction;
    c) payments for repairs are due immediately without deduction;
    d) payment must be made in such a way that the amount agreed for settlement of the invoice is available to the Seller no later than the due date.

  4. The Seller shall accept discountable and properly taxed bills of exchange as well as checks only by special agreement and only as performance in lieu. Credits for bills of exchange and checks are subject to receipt, less expenses, with value date of the day on which the Seller can dispose of the countervalue. The Seller shall not be liable for timely presentation, protesting, notification, and return of the bill of exchange in the event of non-payment.

  5. If satisfaction of the payment claim is endangered due to a deterioration in the Buyer’s financial circumstances occurring or becoming known after conclusion of the contract, the Seller may demand advance payment and immediate payment of all outstanding invoices (including those not yet due) and any bills of exchange received, and may retain goods not yet delivered. The same applies if the Buyer is in default with a single payment, whereby default occurs without special reminder 30 days after the respective invoice date.

  6. In the event of default—irrespective of asserting further default damages—default interest of 5% above the respective central bank discount rate (LZB discount rate) shall be paid.

  7. Cash discounts shall not be granted if the Buyer is in arrears with payment for earlier deliveries.

  8. The Buyer may offset only against claims that are acknowledged or finally adjudicated.

  9. Payments may be made with discharging effect to employees or freelance staff of the Seller only if they present a valid collection authorization (power of attorney) at the time of payment.

§ 6 Notice of Defects and Warranty Claims

  1. Notices of defects must be submitted to the Seller in writing within 1 week after receipt of the goods. If defects are not recognizable upon receipt within the scope of the commercial duty to inspect, they must likewise be reported to the Seller in writing without undue delay after becoming known.

  2. In the event of justified notices of defects, the Seller shall, at its discretion and to the exclusion of other claims, be obliged to remedy the defect and/or provide a replacement delivery. The same applies if a justified notice of defects exists regarding remedy or replacement delivery. In the event of delayed, omitted or unsuccessful remedy or replacement delivery, the Buyer may withdraw from the contract or demand a reduction of the purchase price. Liability for consequential damages due to defects is excluded unless intent or gross negligence is attributable to the Seller or its vicarious agents.

  3. Expenses for the purpose of remedying defects shall be borne by the Seller. This also applies to transport, labor and material costs. However, returns of goods for the purpose of remedying defects or checking notices of defects may only be made upon the Seller’s express instruction. Otherwise, returns shall be at the Buyer’s cost and risk.

  4. Defects in part of the delivered goods do not entitle the Buyer to object to the entire delivery.

  5. For goods returned without fault of the Seller, the Seller shall charge all costs incurred thereby (e.g., inspection, repackaging, etc.), but at least 15% of the net goods value plus the applicable VAT.

  6. Any improper modifications or repair work carried out by the Buyer or third parties shall void liability for the resulting consequences.

  7. The warranty period for replacement deliveries and replacement services is 6 months. It runs at least until expiry of the original warranty period for the delivered item or as long and insofar as the Seller itself has corresponding warranty claims against its upstream suppliers.

  8. In the cases of § 478 German Civil Code (BGB) new version, the Buyer is obliged to notify the Seller immediately—no later than within 10 days—of a substantiated consumer demand for withdrawal or price reduction. Any expenses to be incurred require the Seller’s prior consent. If notification is omitted or consent is lacking, the reimbursement claim shall lapse. Goodwill measures or reimbursement of time-barred or unfounded claims are excluded. In addition, the above provisions and the provisions of §§ 378f German Commercial Code (HGB) apply.

  9. In the event of any guarantee promises, damages are owed only if the guarantee pursues the purpose of protecting the Buyer against damages. The right to withdraw from the contract remains unaffected.

§ 7 Retention of Title

  1. All goods delivered by the Seller remain the property of the Seller until full payment of the purchase price. Ownership continues in the proceeds from the sale of the goods. To this extent, the Buyers irrevocably assign their claims from the sale to the Seller. The Seller hereby accepts this assignment. The Seller is entitled to collect the purchase price itself on the basis of this assignment. The Seller may require the Buyer to disclose the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and notify the debtors of the assignment. All goods delivered by the Seller are hereby irrevocably transferred to the Seller by way of security for all claims arising before and after the respective delivery. This ownership shall also remain in effect if the relevant invoice amounts are settled or if a balance is drawn and acknowledged and paid. The Seller is permitted, at any time and without stating reasons, to declare revocation and, without withdrawing from the contract, to demand surrender of the goods delivered under retention of title as well as the items transferred by way of security.

  2. If the Buyer sells the delivered goods—even in modified or processed condition—the Buyer hereby irrevocably assigns all claims arising from the sale to which it is entitled, up to full settlement of the total claim, to the Seller. The Seller hereby accepts this assignment. The Seller is at any time entitled to collect the assigned claim immediately. This applies in particular in the event of cessation of payments, over-indebtedness, or filing for initiation of composition, liquidation or bankruptcy proceedings.

  3. The Buyer is obliged to provide the Seller at any time with information about the stock of goods delivered by the Seller. For this purpose, the Buyer grants the Seller permission to enter its business or operating premises at any time. In addition, the Buyer is obliged to notify the Seller immediately of any enforcement measures against the goods delivered by the Seller or products manufactured therefrom.

  4. The assertion of claims arising from retention of title, taking possession of the reserved goods, or collecting receivables shall not be deemed withdrawal from the contract.

§ 8 Place of Performance, Jurisdiction, Applicable Law

The place of performance and exclusive place of jurisdiction for all claims and legal disputes arising from the contractual relationship, including bill of exchange and documentary proceedings, shall be the Seller’s registered office. The legal relationship between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany, excluding the Hague Convention on the International Sale of Goods.

§ 9 Severability

The invalidity of one or more provisions of these business, delivery and payment terms or of one or more provisions within the scope of other agreements shall not affect the validity of the remaining provisions.