Terms and Conditions
Conditions of Sale and Delivery of Happy People GmbH & Co. KG
§ 1 Validity Sphere
(1) Our conditions of sale and delivery are exclusively valid and constitute an integral part of our offers and sales contracts. We do not accept buyer’s conditions even if we do not expressly contradict unless we had given our particular and written consent. Our conditions of sale and delivery are exclusively valid even unconditionally effecting delivery to buyer knowing obstacle or different buyer’s conditions.
(2) Our conditions of sale and delivery are also valid for all future business with the buyer even if they had not been pointed out strictly.
(3) With the exception of the managing directors and authorized managers the employees of our company are not allowed to agree to arrangements differing from these conditions or our achievements and rates by making special promises.
§ 2 Offer and Contract
(1) Our offers are always to be understood without obligation. Sale will only be achieved in case we confirm buyer’s order in writing or effect delivery.
(2) The buyer is bound to his order for one week unless a longer period has been agreed or might be usual or a shorter binding period is expressly required by the buyer.
(3) Verbal and telephonic agreements need our written confirmation before becoming legal validity.
§ 3 Prices and Conditions of Payment
(1) Provided that nothing else has been agreed our prices are to be understood ex store or works and do not include insurance cover, packaging plus legally valid value added tax exclusive.
(2) The prices are to be understood in EURO unless another currency has been agreed.
(3) CIF and CFR prices are based on the freight rates and insurance premiums prevailing at the time of contract.
(4) We are endeavoured to keep prices stipulated in the price list. We are entitled to pass on price increases to the buyer due to unforeseen, unusual circumstances like price increases on the part of manufacturers or currency fluctuations. In case the price increase exceeds the offered price by more than 10 % the buyer may withdraw the contract.
(5) Our invoices are payable at once and without deduction. At the latest the buyer falls into arrears in case he does not pay within 14 days after settlement date and arrival of the invoice. Discount is subject to our expressed written confirmation. Without stating any reason we are entitled to make delivery dependent of a payment stage by stage. In case after conclusion of the contract we recognize that our right of service in return might be endangered due to buyer’s missing capacity we are entitled to ask for payment in advance or surety. Same is valid if the buyer gets into picking up delay or if he had already offended against payment conditions agreed upon.
(6) We expressly reserve the refusal of cheques or bills of exchange. The acceptance is always subject to explicit agreement. Discount and bill fees are at buyer’s account and are payable at once.
(7) Falling into arrears with payment we are entitled to claim interest payable on arrears of 10 % on top of the relevant basic interest rate. The buyer has the right to prove to us that due to the payment delay we have not suffered a loss resp. a loss considerably lower. The enforcement of a higher loss is still kept. We are entitled to additionally debit EURO 5,00 each for every reminder. In case of delay in payment possible agreements for respite and granted credit period become invalid.
§ 4 Offsetting, Keeping Back and Ceding
(1) The buyer only has offsetting and keeping back rights if we have not disputed and legally assessed against his claim. This is also valid for the contradiction of the non-performed contract according to § 320 CC.
(2) Without our prior written consent the buyer is not entitled to cede his contractual rights.
§ 5 Delivery
(1) The delivery will be effected via dispatch. The transport resp. forwarding agent will be determined by us.
(2) We take care of soonest possible delivery and keeping the delivery periods or dates. Delivery periods and dates must be drawn up in writing and are to be understood as approximately agreed only.
(3) Delivery will be effected subject to correct and punctual self-supplying as well as safe arrival of goods. After contracting any delays in delivery and services due to force majeur or similar events which cannot be influenced by us like e.g. strike, official orders even if they happen at our suppliers or their sub-suppliers have not to be justified by us. In such case the time of delivery is prolonged by the period of the hindrance plus an appropriate time, but up to six months at the most. After expiry of this period both parties are entitled to withdraw the contract. Same is valid in case one party suffers considerable disadvantages due to the delay.
(4) We are entitled to effect partial deliveries in reasonable extent.
§ 6 Taking Back
(1) In case due to special arrangements we should be forced to take merchandise back, we only accept faultless goods in original packing and if the return will be effected on base carriage paid.
(2) We do not take back merchandise which has been altered by an advertising imprint or something else.
(3) We keep the right to debit the relevant expense allowance for re-working and re-saleability of goods.
§ 7 Transition Risk
(1) The merchandise goes on buyer’s risk and invoice. This is also valid for possible returns. The risk passes over to the buyer as soon as the goods had been handed over to the haulier or forwarding agent who effects the delivery. Even in case of part deliveries or other services e.g. taking over forwarding costs, transport and putting up, this becomes valid, too. If, due to buyer’s instruction or another reason being in buyer’s sphere, transport will be effected at a later than the earliest possible date, the risk passes to the buyer upon announcement of the readiness of delivery.
(2) If requested by buyer, at his account we will insure the consignment against theft, breakage-, fire- and water-damages as well as other risks.
§ 8 Reservation of Proprietary Rights
(1) We reserve us the right at the bought merchandise up to the payment of all existing and future claims resulting from the business relationship.
(2) On buyer’s conduct contrary to the contract, especially in case of delay in payment, we are entitled to demand from him the sold merchandise without granting an extension or to demand the ceding of claim for return against third party. Goods’ return as well as seizure of the reservation goods through us do not mean a withdrawal from the contract unless we had expressly declared it in writing. The buyer has to take over the return costs. With the threat of doing we are entitled to make use of the returned reservation goods. These proceeds less appropriate utilization costs will be counted against buyer’s obligations.
(3) The buyer is entitled to use the reservation goods within the bounds of proper business operation or to sell them unless he has not fallen into arrears with payment or the opening of insolvency proceedings against his property has been applied. Pawnings or safety transfers as well as claim cedings will only be accepted with our previous written allowance.
(4) If the buyer sells goods to which title is retained he hereby now assigns to us his claim from the resale and/or incidental rights in order to secure our claims. The buyer is authorized to collect the debt from the resale until such authority be revoked. However, we can demand that the buyer notifies us who the debtors of the assigned claim are and gives the debtors notice of assignment.
(5) At his account the buyer is obliged to carefully keep the goods being in our (joint-) property, secure them against fire and theft, if requested he has to prove the completion of insurance contract.
(6) Immediately after having got knowledge of third party’s acting at the reservation goods, the buyer has to give us an advice handing over all information and documents required for an intervention. The buyer is responsible for the costs resulting from the cancellation of acting, especially by means of an inquiry of third party’s contradiction charge, as far as they cannot be achieved by the prosecuting believer.
§ 9 Defects and Faults
(1) We guarantee that with the transfer risk the supplied goods are not tainted with essential faults. Catalogue statements do not constitute guarantees but product descriptions. A guarantee only exists if we had expressly described it in writing.
(2) Claims for defects and faults are inapplicable in case working and maintenance instructions will not be followed and changes at the merchandise have been made, unless the defect is not based on them.
(3) Furthermore claims for defects and faults are not possible if the buyer does not reprimand a fault at the merchandise according to following instructions:
Faults visible upon checking the merchandise have to be announced to us
in writing latest within five working days after their receipt and before processing.
Hidden faults which could not be found upon checking the merchandise have to
be announced to us in writing within five working days after their detection.
To observe this period timely claim’s dispatch is sufficient.
(4) If goods are not delivered in accordance with the contract the buyer is not entitled to reject acceptance or payment of goods unless complaints about delivered goods are admitted or assessed by non-appealable judgement.
(5) In case of a fault at the merchandise, first of all we are entitled to choose between repairing or delivering a faultless replacement. As far as it may be reasonable for the buyer we are entitled to refund the inferiority or to take back the delivered merchandise against refund of the selling price. If the improvement or replacement go wrong the buyer has the right of changeability or reduction. Legal guarantee periods are in force.
(6) In case the regulation will not be made within an appropriate period of at least two weeks which has been informed by the buyer in writing or in case period’s fixing might legally be dispensable, according to his own choice the buyer is entitled to reduce the selling price or to withdraw from the contract. If the regulation had not led to faultless buying object, the buyer only has these rights in case beforehand he has unsuccessfully granted to us at least one more appropriate regulation period unless another regulation is not reasonable for the buyer. In case of partial performances the buyer only may withdraw from complete contract if he is not interested in the partial performance and if there is a considerable breach of duty. Compensation rights only refer to the requirements stipulated under § 10.
(7) If checking of the claimed merchandise proves that there was no defect or fault we are entitled to debit our expenditure of labour according to our general hourly wage.
(8) The limitation period of claims for defects and faults is one year.
§ 10 Withdrawal and compensation liability
(1) For the contract’s withdrawal right the legal regulations are valid with the proviso that the right of withdrawal due to a breach of duty not prevailing to faults is only to be considered in case we have to justify the breach of duty.
(2) The liability for a breach of duty is only valid in case of intent and gross negligence as well as in case of offending of an essential contract’s duty (cardinal duty) even for simple negligence. Incidentally rights of compensation are out of question. This liability limitation is not valid for damages which have to be replaced according to the products’ liability law, and for injuries at life, body or health.
§ 11 Commercial Rights and Third Parties’ Copyrights
As far as the supplied goods were produced according to buyer’s designs or instructions the buyer has to keep us free from all claims asserted by third party due to offending of commercial rights or copyrights.
§ 12 Data Protection
The buyer agrees that any data resulting from the business for which these conditions of sale and delivery are applicable will be stored on business card index files.
§ 13 Final Requirements
(1) The contract shall be governed by the law of the Federal Republic of Germany. The applicability of the standardized UN-purchase right (CISG) is out of question.
(2) With regard to the contractual obligations Bremen shall be the place of performance.
(3) Negotiating with businessmen, legal entities of the public law or public law special assets Bremen shall be the court of jurisdiction. For complaints against us this court of jurisdiction is exclusively. We keep the right to take proceedings against the buyer at a legally-founded court of jurisdiction.
(4) To become effective contract alterations, amendments and extra agreements must be done in writing. As far as according to these conditions the written form is required, transmission by telefax or e-mail is sufficient.
(5) In case one or more regulations of these general terms of business become or will become inoperative or in case the contract should contain a loophole, the validity of the remaining regulations keeps unaffected. The inoperative or incomplete regulation will be replaced by such one mostly fulfilling the economical point and purpose of the intended term.