Terms of Sale, Delivery and Payment from Jonathon Entertainment GmbH
1 SCOPE OF APPLICATION
- These Terms of Sale shall apply to every contractual relationship between the Jonathon Entertainment GmbH (hereafter: “suppliers”) and the Ordering Party (hereafter: “Customer”). The Terms of Sale shall apply only to entrepreneurs to legal persons under public law or to special funds governed by public law within the language of § 310 para. 1 of the German Civil Code (BGB).We shall not recognize any terms of the Consumer contrary to or at variance with our Terms of Sale unless we have expressly consented to their application in writing.
1.2 The consumer acknowledges the Terms of Sale with his order.
1.3 These Terms of Sale shall also apply to all future transactions with the Customer in sofar as these are legal transactions of a related nature, without being explicitly noted.
2 OFFER AND CONCLUSION OF CONTRACT
2.1 Our offers shall always be considered non-binding. All orders shall be accepted written by the suppliers. The delivery of the goods applies as a declaration of acceptance from the suppliers.
2.2 We reserve the right to modify our products relative to our specimen goods for reasons of an objective or technical nature.
3 PRICES, PAYMENT AND OFFSETTING
3.1 In the absence of other arrangements, our prices shall apply ex works exclusive of packaging and plus VAT in the valid applicable amount. The cost of packaging, transport insurance and shipping cost shall be invoiced separately. All prices can be change at any time without any further pre announcement. The supplier regularly conveys the customer the current price lists with a recommended customer price.
3.2 Unless otherwise agreed, the particular invoice total (gross) is according to the rules billing immediately due to 75%. The balance of 25 % shall be due at the delivery of the goods. The deduction of discount requires a special written agreement.
3.3 Arrears in the payment of the purchase price shall apply no later than as specified in § 286 para. 3 of the BGB. Interest on any arrears shall be assessed according to the statutory provisions. We reserve the right to press for damages due to arrears in excess of this amount.
3.4 The Customer shall have a right to offsetting only if its counter claims have been recognized as a matter of law or are uncontested. The Consumer shall be entitled to exercise a right of retention only insofar as is counterclaim rests on the same contractual relationship.
4 DELIVERY TIME AND TRANSFER OF RISK
4.1 The delivery periods shall only binding, if we explicitly and agreed upon in writing. Otherwise they only refer as a note and directive. Claim of compensation or contract termination because of delay of delivery are not excluded.
4.2 The delivery times in our order confirmation are noted with ‘ca. KW ‘. Goods, which are out of stock, are delivered within 8 to 10 weeks after transmission of the order confirmation.In the absence of other arrangements, we reserve the right to extend delivery times and to make partial deliveries within reasonable limits based on the original delivery time originally indicated, unless this is unreasonable for the Consumer. In the event of obstacles for which we are not responsible such as strike, operational disruptions and force majeure, delivery deadlines shall be extended accordingly,
4.3 The beginning of the delivery time we have indicated shall be predicated on timely and proper fulfilment by the Customer of its own obligations, especially the liability to pay in pursuance of para. 3. The delivery of the goods to the Customer will be made by receipt of a payment in the amount of 75 % according to para. 3 number 2 (prepayment), We shall reserve the right to object for non-fulfilment of contract.
4.4 If the Customer should be in default of acceptance, or if it is in non-accidental violation of other obligations to co-operate, we shall be entitled to demand compensation for damage we have incurred up to that point, including any additional expenses. We also reserve the right to assert claims above and beyond those described. Where the afore mentioned conditions exist, the risk of accidental destruction or of accidental deterioration of the object of purpose shall transfer over to the Customer at such time as the Customer is in default of acceptance or payment.
4.5 If the merchandise is sent to the Customer at its request, the risk of accidental destruction or of accidental deterioration shall transfer over to the Customer upon dispatch to the Customer, and not later than when the merchandise leaves the works / warehouse. This shall apply regardless of whether the merchandise ships from the place of fulfilment, and regardless of who pays the freight charges.
5 RETENTION OF TITLE
5.1 We shall retain title to the item delivered pending payment in full of all claims arising out of the business relationship between us and the Customer. The retention of title shall include all sold goods to the Customer and even the already paid prices. This shall apply for all future deliveries as well, even in the absence, on our part, of an express reference hereto.
5.2 As long as the rights of title have not transferred over to it, the Customer shall have an obligation to take good care of the object of purchase, and to provide us with prompt written notification if the delivered object should be pledged or exposed to other third-party interventions.
5.3 The Customer shall be entitled to resell the conditional goods in the course of ordinary business transactions.The Customer now assigns to us any claims arising out of the resale of the conditional goods in the amount of the total invoice amount for the goods (including VAT). The assignment is assumed. The Customer shall remain authorized to collect this claim even after this assignment. This shall not impinge in any way upon our powers to collect the claim ourselves. We shall not, however, collect the claim as long as the Customer fulfils its payment obligations from the proceeds received, is not in payment arrears and, particularly, as long as no petition has been lodged for the opening of insolvency proceedings and as long as there has been no cessation of payment. On demand, the consumer shall publish the suppliers the name, address and amount of each claim against the garnishee.
5.4 We hereby covenant to release the securities to which we are entitled at the Customer’s demand insofar the value of these securities exceeds the claims to be secured by more than 10%
5.5 The Customer shall immediately inform the supplier, if third party access to the goods, for example in case of a seizure, as well as any damages or destruction of the goods and notify the third about retention of title. In addition, the Customer will fully support the supplier in the protection of the rights. The change in ownership of the goods as well as change of residence shall immediately be announced.
5.6 If after conclusion of contract circumstances arise, which belittle the credit worthiness of the Customer or the Customer acts in violation of contract, for example default of payment or breach of duty, the supplier is entitled to obtain payment or retrain from contract and take back the goods and furthermore demanding advance payment for goods which are yet to be delivered. In case of withdrawal, the Customer allows now and irrevocable free entrance to his goods in business and storage rooms of the Customer.
6 LIABILITY FOR DEFECTS
6.1. The Customer’s warranty rights are predicated on the Customer’s having duly fulfilled its obligations of inspection and complaint pursuant to § 377 HGB, and, subject to clause 2, has done so no later than within 8 days of its having received the merchandise in question. This applies also for hidden defects.
6.2 Claims for defects shall come under the statute of limitations in 12 months, calculated from the date of transfer of risk. Notwithstanding clause 1, we shall accept liability under the provisions of law insofar as a damage claim lodged due to a defect owes to willful intentional conduct or gross negligence on our part, or on the part of our representatives or agents. In case of a defect caused by simple negligence, our liability for damages caused hereby shall be limited to the foreseeable damage typically occurring in such sets of circumstances. This shall not apply to liability for non-accidental injury to life, body or health. Clause 1 shall still not apply in the case of delivery recourse pursuant to §§ 478, 479 of the BGB; to this extent, the statutory period of limitation shall be 5 years, calculated from delivery of the defective object.
6.3 If, despite the care taken, the delivered merchandise should have some defect that already existed upon transfer of risk, we shall, at our discretion, and subject to timely notice of defects, either rectify the defect or make a substitute delivery. In all cases, we shall be given an opportunity to perform subsequent fulfilment within a reasonable period of time. Our consent must be obtained prior to any return shipment of merchandise. Claims of recourse shall remain unaffected and free of any restrictions by the above provision. If said subsequent fulfilment should come to nothing, then the Customer shall be entitled to withdraw from the Contract or reduce the remuneration due, notwithstanding any claim for damages.
6.4 Claims for defects shall not be considered in cases of only insignificant deviations from the agreed condition of the delivery goods, in cases of only insignificant impediments to usability, in cases of deterioration through use or natural wear and tear, or in cases of damage arising subsequent to the transfer of risk as a result of improper or negligent handling, excessive strain, unsuitable equipment or as a result of extraordinary external influences not specified under the Contract. If the Ordering Party or any third party should undertake unqualified maintenance or modifications, no claims for defects shall be considered with regard to these efforts or the consequences thereof.
6.5 Claims of recourse against us on the part of the Customer shall obtain only insofar as the Customer has not entered into agreements with its purchasers guaranteeing any rights of claims for defects beyond the compulsory levels provided by law.
7.1 We shall accept liability in keeping with the provisions of law in the event of non-accidental or grossly negligent conduct on the part of our executive bodies, employees and agents. The same shall apply in the case of non-accidental injury to life, body or health, upon acceptance of a procurement risk or of warranties or some other no-fault liability or in the case of liability under the German Product Liability Act (Produkthaftungsgesetz).
7.2 We shall accept liability on the merits for simple negligent violation of fundamental contractual obligations: obligations in the fulfilment of which the Customer places faith and is entitled to place faith, for the proper execution of the Agreement. The magnitude of our liability in this case shall be limited to the damage foreseeable and typically incurred.
7.3 Further liability is hereby precluded.
7.4 Insofar as our liability is precluded or limited, this shall also apply to personal liability on the part of our executive bodies, employees and other agents.
8 SALES TERRITORY
8.1 The Customer shall not export the goods in country’s outside the European Economic Area and Switzerland (together ‘Europe’) or selling the goods to custumers, which directly or indirectly export or from which he knows or has the reason to believe, that they export goods into country’s outside of Europe.
8.2 The Customer shall incorporate according to the restrictions in segment 8.1 in all his agreements with his costumers regarding the goods and shall examine the observance and take effective measures for infringement. The Customer agrees that he is responsible against the supplier for every infringement from his costumers.
9 MARKETPLACE GUIDELINES
The Customer shall not offer or sell the goods on any website, which is not carried by the Customer and under the name of the Customer. This includes the selling over the internet from third parties, which have the name and logo of the third party. In case of infringement against the clause, the supplier reserves the right to end the delivery relationship with the costumers with immediately effective and without every compensation or indemnification.
10 APPLICABLE LAW, LEGAL VENUE AND PLACE OF FULFILMENT
10.1 This Agreement and all legal relationships as between the Parties hereto shall be subject to the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10.2 The place of fulfilment and exclusive venue for any and all disputes arising is Cologne, Germany.
10.3 The exclusive language for this Agreement shall be German. If the General Terms and Conditions are also announced in another language, said announcement is intended to facilitate understanding only. Despite the existence of a translation, whether enclosed or contained within the same document, the German version of the Agreement shall be binding and shall apply in the event of differences of interpretation and departures in terms of substance. Any instances of interpretation of the German wording of the Agreement, and in the event of a loophole any supplemental contractual interpretation, shall be based exclusively on a grasp of, and on the principles of interpretation applicable within, German jurisprudence.