General Sales Terms and Delivery Conditions of Feierabend Unique Books
§ 1 General
(1) The terms and conditions set out below shall form part of the sales and delivery contract concluded with us.
(2) Our General Sales Terms and Delivery Conditions shall apply as amended frome time to time also to all subsequent transactions without any need of express reference thereto or agreement thereon upon conclusion of such transaction.
(3) Buyer's acknowledgements or counter offers referring to its own terms and conditions are hereby rejected; any diverging terms and conditions of the Buyer shall only apply if we have confirmed them in writing.
(4) The Buyer may not assign any claims arising from transactions with us without our explicit approval.
(5) The provisions of these General Terms and Conditions extend to standard contract conditions which are used in a contract with a merchant in the course of business only.
§ 2 Offers; Orders
(1) Our offers shall be subject to change, in particular with reference to quantity, price and delivery time.
(2) Orders placed by the Buyer shall be regarded as accepted after having been confirmed by us in writing. If we fail to confirm an agreement in writing entered into verbally or by phone, our invoice shall be regarded as confirmation.
§ 3 Prices; Discounts; Credit Notes
(1) Our prices shall exclude any statutory VAT in force at the date of delivery. In case of VAT-exempt deliveries to member states of the European Union or to other countries outside the customs territory of the European Union (so-called third countries), deliveries shall be effected without specifying the VAT in force for the time being in the country of destination, if the legal requirements have been met.
(2) If, as a result of a change of law between the conclusion of an agreement and the delivery date, additional or increased charges - in particular duties, levies, currency compensation payments - become due, we shall have the right to increase the purchase price accordingly. The same shall apply to any investigation fees.
(3) Any discounts granted by us shall be exclusively calculated on net price basis (total price without VAT).
(4) Credit notes are generally not reimbursed but set off against further deliveries of goods.
§ 4 Quantity; Quality
(1) At all times, we shall have the right to supply 3% more or less than the agreed amount.
(2) Unless otherwise agreed or confirmed by us in writing, the quality of the goods shall be in accordance with customary trade practice.
§ 5 Transfer of Risk; Shipment; Delivery
(1) In case of any deliveries, the risk of loss of the goods shall be passed on to the Buyer upon handover to the forwarding agent, freight carrier or any other persons charged with the shipment of the goods.
(2) The goods shall always be transported uninsured and in any case at the Buyer's risk. This shall also apply in case of delivery free of charge and regardless of which means of transport is used. Transport insurance shall only be contracted upon the Buyer's express request. Unless otherwise agreed or confirmed by us in writing, any costs arising therefrom shall be at the Buyer's sole expense.
(3) Unless otherwise agreed upon in writing, the place of dispatch, the transport route and the means of transport shall be selected by us at our reasonable discretion without assuming any liability for the cheapest and fastest transport.
(4) If the Buyer provides the means of transport, it shall be responsible for its availability on time. We shall immediately be informed of any delays. Any costs arising therefrom shall be at the Buyer's expense.
(5) We shall have the right to reasonable partial deliveries.
(6) Our delivery obligation shall at all times be subject to timely and duly receipt of the goods from our own suppliers.
(7) Unless otherwise expressly agreed in writing, any specified time of delivery and unloading shall be non-binding.
(8) Any inability to supply due to force majeure or other unforeseen incidents outside our responsibility, including, without limitation, breakdown, strike, lock out, official orders, export or import opportunities existing no longer as well as our reservation of timely supply from our own suppliers in accordance with subsection (6) above shall, for their duration and according to the extent of their impact, relieve us from the obligation to comply with any agreed times of delivery or unloading. These incidents shall also entitle us to withdraw from the contract, without the Buyer being entitled to any compensation for damages or other claims.
(9) If any agreed time of delivery or unloading is exceeded without any incident referred to in subsection (8) above being existent, the Buyer will have to grant us a reasonable period of grace of at least two weeks. If we fail to meet such deadline as well, the Buyer shall have the right to withdraw from the contract, but shall have no right to claim damages due to breach of contract or default, unless in cases of wilful misconduct or gross negligence on our part.
§ 5 Obligation to investigate and to complain
(1) Upon delivery of the goods at the agreed destination or (in case of pickup of the goods by the customer) upon receipt, the Buyer shall immediately
a) check quantities and packaging of the goods and record any objections thereto on the delivery note or consignment note or the acknowledgement of receipt and
b) conduct at least a representative spot quality check and, for such purpose, open the packaging (cartons, foils etc.) to a reasonable extent and check the condition of the goods.
(2) In case of a notice of defect, the Buyer shall comply with the following procedures and deadlines:
a) The notice of defect shall be made by no later than the expiry of the working day following the day of delivery of the goods to the agreed destination or their receipt. In the event of a complaint about a latent defect which, despite a first duly inspection in accordance with subsection (1) above, has remained undiscovered, a different deadline regime shall apply. In such case, the complaint must be submitted by expiry of the working day following the day on which the defect has been discovered but in any event by no later than two weeks after delivery or receipt of the goods.
b) The detailed notice of defect shall be delivered to us or to our sales representatives within the aforementioned deadlines in writing by fax or e-mail. A notice by phone shall not be accepted.
c) The notice must clearly specify the kind and amount of the alleged defect.
d) The Buyer shall be obliged to make available for inspection at the place of investigation the rejected goods; such inspection may be done by us, our suppliers or any expert authorized by us.
(3) No complaints with regard to quantity or packaging of the goods shall be accepted, unless a notation has been placed on the delivery note or consignment note or acknowledgement of receipt required in accordance with subparagraph (1) (a) above. Moreover, the right to complain shall cease to exist, as soon as the Buyer has mixed, used or resold the goods delivered or has started its processing.
(4) Any goods about which complaints have not been submitted in accordance with the procedures and deadlines set out above shall be regarded as approved and accepted.
§ 7 Remission
Our goods are generally delivered without any right to return them, if not otherwise provided for or confirmed by us in particular cases.
§ 8 Limitation of Liability
(1) The period of limitation for any warranty claims shall be one year from the date of the transfer of risk.
(2) Upon justified complaints submitted in accordance with the procedures and deadlines hereunder, the Buyer shall first of all be entitled to demand at its discretion the delivery of substitute goods free of defects or the remedy of the defects.
(3) As far as the purchased goods have defects for which we are responsible and if we are notified accordingly in compliance with these Conditions, we shall be entitled at our sole discretion to either replace the goods free of charge or remedy the defect. If we are neither ready nor able to either repair or replace the goods the Buyer shall be entitled at its sole discretion to claim for a reduction of price or to withdraw from the contract.
(4) Beyond this, we shall only be liable for gross negligence or wilful misconduct. In case of simple negligence, we shall only be liable for damages foreseeable and typical for this type of contract and only if an obligation of significant importance to the achievement of the purpose of this agreement (cardinal obligation) has been violated. Any further liability for damages shall be excluded.
The limitation or exclusion of liability, as set out above, shall not apply in case of body and health damages or our liability under the Produkthaftungsgesetz (German Product Liability Act).
Any exclusion or limitation of liability shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents
§ 9 Payment
(1) All deliveries shall be invoiced in the currency valid in the Federal Republic of Germany and shall be paid in that currency.
(2) Our purchase price claims are generally net cash amounts and payable strictly net upon receipt of invoice, unless other payment terms have been agreed.
(3) We shall accept bills or cheques only upon specific arrangement and only on account of payment. Any discount and bill charges shall be at the Buyer's expense and immediately payable. Any costs associated with the payment, in particular with any payments by bank transfer, shall be borne by the Buyer.
(4) If the invoice amount is not settled at due date, we shall have the right to charge default interest at a proven amount but at a minimum rate of 8% above the base rate of the European Central Bank, without a special notice being required.
(5) If the Buyer's business is not operated normally any longer, including, without limitation, acts of seizure or protesting of a bill or cheque, delay or even suspension of payments, petition for judicial or out of court settlement proceedings or bankruptcy proceedings against it or for proceedings in accordance with the German Insolvency Code, we shall have the right to fix a due date for all our claims arising from the business relationship, even if we have accepted bills or cheques. The same shall apply, if the Buyer falls behind with the payments due to us or other incidents become known which give rise to doubts about its creditworthiness. Moreover, we may in such case demand advance payments or a security deposit or withdraw from the contract.
(6) The Buyer shall have no right to set-off, retention or reduction, unless the asserted counterclaims have been recognized by declaratory judgment or expressly acknowledged by us.
§ 10 Retention of Title
(1) We shall retain full title of the delivered goods until the Buyer has discharged all debts arising from the business relationship, including any outstanding receivables from current accounts or refinancing or reverse bills.
(2) The Buyer shall have the right to sell the goods delivered by us within the ordinary course of business. The authorization granted hereunder shall cease in the cases referred to in § 9 (5) above. Moreover, we may withdraw the sales authorization of the Buyer by written notice if it falls behind with the fulfilment of its obligations to us and in particular with its payments, or if we become aware of other incidents that give rise to doubts about its creditworthiness.
(3) The Buyer hereby assigns to us all claims arising from the resale of the goods delivered subject to retention of title. Such claims arising from a resale shall also include claims against the bank which, within the scope of such resale, has issued or confirmed a letter of credit for the benefit of the Buyer (= reseller). We hereby accept such assignment. If the goods delivered subject to retention of title are processed goods or a mixed stock, which, in addition to the goods delivered by us, only include such ingredients that have been either the Buyer's property or have been delivered to it by a third party subject to so-called simple retention of title, the Buyer shall assign to us the whole claim arising from the resale. In the other case, i. e. in the event of a coincidence of pre-assignments to us and other suppliers, we shall be entitled to receive any resale proceeds on a pro rata basis corresponding to the proportion of the invoice value of our goods to the invoice value of the other processed or mixed goods.
(4) As far as our claims shall be undoubtedly secured by the assignments and retentions declared above by more than 125%, any surplus of receivables and/or goods delivered subject to retention of title shall, upon request of the Buyer and at our discretion, be released.
(5) The Buyer shall be authorized to collect any receivables arising from the resale of goods. Such authorization to collect shall cease, if there is no longer an ordinary course of business as defined in § 9 (5) above. Moreover, we may withdraw the Buyer's authorization to collect, if it falls behind with the fulfilment of its obligations to us and in particular with its payments or if we become aware of other incidents that give rise to doubts about its creditworthiness. If the above authorization ceases or is withdrawn by us, the Buyer shall upon our request immediately specify its debtors of the assigned claims and provide us with any information and documentation necessary for collection.
(6) In case of any third party action against our goods delivered subject to retention of title or any receivables assigned to us, the Buyer shall notify such party of our title/our right and immediately inform us about such action. The Buyer shall bear the costs of any intervention.
(7) If the Buyer is in breach of contract, in particular if it falls behind with its payments, it shall, upon our first request, immediately return to us all goods delivered subject to retention of title and assign to us any claims for recovery against third parties in conjunction with such goods. Any withdrawal or seizure of goods delivered subject to retention of title shall not be regarded as a withdrawal from this agreement.
(8) In the cases referred to in § 9 (5) above, we may demand from the Buyer to inform us about the claims arising from the resale that have been assigned to us in accordance with § 10 (3) above, including its debtors. Following such information, we shall have the right to disclose the assignment at our discretion.
§ 11 Final Provisions
(1) For our benefit, the courts of Cologne shall have jurisdiction for all disputes arising from this Agreement. However, we may also select a different place of jurisdiction.
(2) The laws of the Federal Republic of Germany shall apply. International purchase laws shall not apply. This shall, in particular, also refer to the UN Convention (CISG) on the International Sale of Goods.
(3) The invalidity of any provision of these general sales terms and delivery conditions shall not affect the validity of the other provisions. Invalid provisions shall be deemed to be replaced by such valid provisions suitable to implement the economic purpose of the deleted provision to the greatest possible extent.
(4) In the event of any inconsistency between the German and the English version, the German version shall prevail.