General Terms and Conditions
GENERAL TERMNS AND CONDITIONS OF DELIVERY AND PAYMENT (STATUS 10/17)
of Arnold Sports GmbH, Rothelebuch 7, D-87637 Seeg
1. SCOPE; CONCLUSIONS OF AGREEMENT
1.1 Our deliveries and services (hereinafter: deliveries), including future deliveries, shall be made exclusively in accordance with the following Terms and Conditions of Delivery and Payment. Deviating or supplementary terms and conditions of the customer shall only apply if we have agreed these explicitly with the customer. All such agreements shall be made in writing.
1.2 Our offers are non-binding and subject to confirmation. Contracts with us shall only be concluded when the customer receives our written order confirmation or at such time when we commence deliveries. The customer shall be bound to an order, be it oral, by telephone or in writing, for a term of six weeks. An order confirmation shall be considered accepted in the absence of an objection by the customer within a week of its receipt.
1.3 Our offers are directed exclusively to retailers who sell to end-users. They are not directed toward dealers who resell by way of auction or on platforms on which auctions also take place. When placing an order, the customer gives a binding assurance that they shall exclusively sell the ordered goods to end-users and shall not do so by way of platform-based auction.
1.4 Our offers, written order confirmations and these Terms and Conditions are decisive for the content of the contract. Other agreements concerning the execution of a contract, and in particular subsequent amendments, supplements or subsidiary agreements shall only become part of the contract if we have expressly agreed them with the customer. Such agreements shall be recorded in writing.
2. QUALITY OF THE GOODS; COPYRIGHT
2.1 Only those features, which are stated in the relevant offer or order confirmation, shall form part of the agreed quality of our goods and services. Other or further statements regarding properties and features are generally not contractual statements of quality. They shall only constitute a quality agreement if they are explicitly agreed as such with the customer. Such quality agreements shall be recorded in writing.
2.2 We reserve the right to deviations from illustrations and descriptions, tolerances in quality and dimensions customary in the industry, the correction of printing errors and mistakes, as well as product changes that serve technical progress. Dimension and weight specifications contained in illustrations, descriptions and documents are always non-binding; this shall not apply where such deviations, etc., would be unacceptable to the customer.
2.3 Declarations which exceed the scope of a quality agreement within the meaning of the above clause 2.2 and which we make with regard to certain properties and characteristics of our goods shall only constitute a quality guarantee within the meaning of Sections 442 and 444 German Civil Code (BGB) if our declaration relates to the quality (a characteristic) and we declare that we intend to be responsible for the quality in a strict and binding manner. Such declarations shall be made in writing.
2.4 We reserve the right of ownership and copyright to all documents, such as offers, illustrations, drawings, estimates and the like, placed at the disposal of the customer or interested parties; these may only be used for the purposes of the contract and may only be made accessible to third parties with the explicit consent of the supplier. The documents are to be returned immediately upon request or in the event that the respective order is not issued. For each violation of this provision, a contractual penalty of €7,500.00 shall be automatically deemed forfeited; the right to assert further claims for damages remains reserved.
2.5 For goods produced in accordance with specifications, drawings or sketches provided by the buyer, we shall not be liable for any infringements of the industrial property rights of third parties. If claims are asserted against us by third parties for this reason, the buyer shall indemnify us in full against such claims.
3. PRICES AND PAYMENTS
3.1 Our prices apply net (exclusive of VAT), ex-works, exclusive of packaging and transport costs, and are calculated in Euros. Confirmed prices shall only apply to the acceptance of the confirmed quantities. Sale prices offered in writing shall only apply as fixed prices if the relevant offer is accepted immediately, but at the latest within ten days, in its original form, by means of a written order.
3.2 If and to the extent that our customer is an entrepreneur, we reserve the right to pass on to the end-customer any cost increases exceeding 3% at the time of purchase and/or manufacture, insofar as they are not attributable to Arnold Sports. This shall particularly apply in the event that we obtain goods from third parties and the rise in price was unforeseeable by Arnold Sports or is due to measures of sovereign bodies (e.g., punitive tariffs).
3.3 If advance payment has not been expressly agreed and no other arrangements have been made, then our invoices are due for payment 10 days after the invoice date. From the due date, the customer shall owe interest in the amount of the statutory interest pursuant to Section 288 (2) of the German Civil Code (BGB) and, in the event of collection, a flat rate of €40.00.
3.4 If it becomes apparent that our payment claims are at risk due to the customer’s inability to pay, we shall be entitled to demand immediate payment of all claims from the entire business relationship with the customer, provided that we have already made delivery. This shall also apply if we have already accepted cheques or bills of exchange. We may demand advance payment for future deliveries that have not yet been made. A risk within the meaning of these regulations exists if information from a bank or a credit agency suggests the credit unworthiness of the customer.
3.5 The customer may only offset undisputed or legally established claims; this also applies to the assertion of rights of retention. An assignment of any claims against us is inadmissible.
4. PLACE OF PERFORMANCE, DELIVERY AND TRANSFER OF RISK
4.1 The place of performance for all the parties’ delivery obligations arising from the contract shall be our registered office, our branch office or the delivery warehouse in which the goods are handed over to the first carrier for transfer to the customer.
4.2 The risk of accidental destruction or accidental damage to goods shall pass to the customer at the moment at which we have handed over the goods to the first carrier for transfer to the customer. In the event that goods are ready for shipment, but shipment is delayed for reasons not attributable to Arnold Sports, the risk shall pass to the customer upon receipt of the communication of shipment readiness. The transfer of risk shall also occur accordingly in the event that we carry out the transport, assume other duties to be performed at the place of delivery or assume the transport costs. At the customer’s request and expense, we shall be obliged to take out any insurance requested by the customer.
4.3 In the event that we collaborate with loading and unloading, or in another manner relating to the transport of the goods (signing of insurance policies, handling customs formalities, etc.), this shall be done on the instructions, and at the risk, of the customer.
4.4 Transport damages must be reported to the carrier immediately.
5. DELIVERY AND PERFORMANCE PERIODS
5.1 Delivery and performance deadlines indicated in offers and order confirmations shall generally be non-binding. The deadlines begin with the dispatch of the order confirmation, but not before the customer has provided any documents, approvals, releases and the information required to process the order and not before receipt of an agreed down payment. In the exceptional event that a specific delivery deadline is agreed, delivery default shall only occur after a reminder has been sent and a grace period of at least 4 weeks set for us has expired without result. If a contract is subsequently amended, any existing delivery deadline shall be adjusted accordingly.
5.2 Deadlines shall be regarded as met if shipment has been made by the time they elapse, or if delivery/performance readiness has been communicated.
5.3 Forces majeures (unexpected circumstances or events, not attributable to Arnold Sports, which could not have been avoided, even with the prudence of a diligent businessperson) shall interrupt our delivery/performance obligations for the period of their duration and to the extent of their effect, even if we were already experiencing a delay.
5.4 If we have concluded a congruent covering transaction with our suppliers in good time, the delivery dates stated by us shall be subject to punctual and proper self-delivery.
5.5 In cases as described under 5.3. and 5.4., we shall be entitled to withdraw from a contract if we have informed the customer, without undue delay, of the occurrence of a force majeure in cases as described under 5.3. or have informed the customer of the late or improper delivery in the cases described in clause 5.4 and reimburse the customer immediately for any consideration received.
5.6 If we fail to meet an agreed delivery target, the customer may set us a reasonable deadline for performance. After fruitless expiry of this grace period, the customer may withdraw from the contract. Any claims for damages by the customer shall be excluded in all cases of delayed delivery – even after expiry of a grace period granted to the supplier – unless otherwise specified hereafter.
5.7 In the event of non-acceptance and/or non-fulfilment of the contract or in the event of withdrawal, the buyer shall pay us a lump sum of 15 % of the contract sum net as compensation. The buyer is entitled to prove lower damages. We are not prevented from proving and claiming higher damages despite the agreement on lump-sum damages.
5.8 In the event of non-acceptance of goods that have been especially manufactured according to the wishes of the customer, or in the event that an advance order is cancelled, we reserve the right to enforce lump-sum damages amounting to 75% of the net value of the goods at the time of the order placement. The buyer is entitled to prove lower damages; notwithstanding the lump-sum compensation for damages, we shall be entitled to prove and assert higher damages.
6. GUARANTEE
6.1 No guarantee shall be assumed for damages caused by unsuitable or improper use and incorrect use, storage and/or processing caused by the customer.
6.2 The goods must be inspected immediately after delivery. Any defects must be notified immediately, but at the latest by the end of the eighth day following delivery. If the customer fails to make notification, the goods shall be considered approved, unless a defect is present which was not detectable through the inspection. Should such a defect be subsequently detected, notification must be made immediately upon detection; otherwise, the goods shall be, despite such a defect, considered approved.
6.3 In the case of justified notification of defects, subsequent performance (elimination of the defect or delivery of a defect-free item) shall be effected at the discretion of the supplier. The costs of subsequent performance shall be borne by the customer to the extent that these are attributable to the fact that the customer has moved the goods to a location other than their commercial branch, unless this is part of the intended use. In this respect, the buyer must return the defective goods to us carriage paid if we so request. If the notification of defects turns out to be justified, the costs of the cheapest return shipment shall be borne by us. If the supplementary performance fails twice, is refused by the supplier or is unreasonable for the customer, the customer is entitled to demand the cancellation of the contract (withdrawal) or the reduction of the remuneration (reduction); in the case of a minor breach of contract, in particular in the case of only minor defects, however, the customer has no right of withdrawal.
7. RETENTION OF TILE
7.1 Delivered items shall remain the property of the supplier until full payment has been made of all claims the supplier has against the customer based on their commercial relationship. For payments made using the so-called cheque/bill-of-exchange-procedure, retention of title shall remain in effect, including in the event of the cashing of the check provided by the customer, until the bill of exchange is returned or validated or recourse on the bill is otherwise excluded.
7.2 In the event that our goods are processed, mixed or combined, it is agreed that this shall be undertaken on our behalf as manufacturer and that we shall acquire direct ownership or – if the processing, mixing, combining with goods/materials of several owners takes place or if the value of the object manufactured in this way is higher than the value of the reserved goods – the co-ownership (fractional ownership) or the expectant right to the future (co-)ownership of the newly created object in the proportional value.
7.3 The customer is only permitted to dispose of the delivery items subject to retention of title (hereinafter retained products) within the context of ordinary business transactions. Further disposals shall however be forbidden, if the claims issuing from further disposals do not pass to Arnold Sports. The customer is not entitled to pledge the reserved products, to assign them as security or to make other dispositions endangering the property of the supplier. The customer hereby assigns to us the claims from the disposal – in the case of co-ownership pursuant to Clause 7.2 proportionately – we hereby accept the assignment. The customer is revocably authorised to collect the claims assigned to us in trust for us in their own name. We may revoke this authorisation and the authorisation to dispose of the goods if and to the extent that the customer is in default with the payments owed to us.
7.4 The customer is obliged to handle the retained products carefully for the duration of the retention of title and to insure them appropriately at their own expense. The customer shall notify us immediately of any impairment of our property rights by third parties, in particular by confiscation or seizure, by sending us the documents available to them (e.g. seizure reports). They are obliged to call our right of ownership to the attention of third parties. All costs resulting from such impairments of our rights shall be borne by the customer.
7.5 In the event of a customer’s breach of contract – in particular, delay in payment, we shall be entitled to withdraw from the contract and to reclaim the goods, without prejudice to our other rights.
7.6 At the request of the customer, the supplier is obliged to release the securities to which the supplier is entitled in accordance with the above provisions to the extent that their realisable value exceeds the total claims to be secured by 20%.
8. LIMITATION PERIODS
8.1 Claims of the customer based on defects shall expire one year from delivery of the goods. Claims of the customer in connection with a defect in goods, which is based upon a right in rem of a third party, by virtue of which return of the goods, can be demanded, or upon another right, which can be entered in the title register, shall expire after three years.
8.2 Other contractual claims of the customer due to breaches of duty shall also expire – as far as legally permissible – after one year, with the exception of claims for damages for injury to life, limb or health or an essential contractual duty as well as due to other damages which are based on an intentional or grossly negligent breach of duty by us, our legal representatives or vicarious agents and claims for reimbursement of costs pursuant to Section 478 (2) German Civil Code and claims based on the malicious concealment of a defect.
9. LIABILITY
9.1 Claims not expressly provided for in these Terms and Conditions, in particular claims for damages and reimbursement of expenses of the buyer for any form of defective performance of the contract as well as cases of tort are excluded. This exclusion of liability does not apply to intent or gross negligence, nor to damages resulting from injury to life, limb or health, nor to damages under the German Product Liability Act (Produkthaftungsgesetz), nor if we have maliciously concealed a defect.
9.2 We shall also be liable for minor negligence if we have contractually assumed the procurement risk or a guarantee or if these are obligations, which are indispensable for achieving the purpose of the contract and on the strict observance of which the customer can regularly rely (“cardinal obligations”).
9.3 In terms of amount, our liability to pay damages shall be limited to foreseeable damages typical of the contract, except in cases of intentional or grossly negligent damage, and in terms of amount to the total coverage of our (product) liability insurance, which does not fall below € 1,000,000.00. Consequential damages exceeding this are excluded.
9.4 To the extent that liability is excluded pursuant to 9.1, the same shall apply to the liability of our vicarious agents.
10. DATA PROTECTION
10.1 Data of the customer that is necessary for the execution of the contract will be stored by us and will only be disclosed within the framework of the execution of the contract if this is necessary to comply with the statutory data protection provisions.
10.2 For the purpose of order execution, the customer must, in particular, supply to us the VAT ID number issued by the competent tax office as well as all other requisite information in accordance with statutory regulations. Otherwise, the order cannot be processed. The customer declares their explicit agreement to this.
10.3 Insofar as our customer provides us with their e-mail address, it shall be understood that the customer consents now and in the future to the transmission of messages and information (including information of an advertising nature) going beyond the specific order placed.
11. FINAL PROVISIONS
11.1 These Terms and Conditions and all legal relations between the supplier and the customer shall be governed by the laws of the Federal Republic of Germany.
11.2 If the customer is a merchant or legal entity under public law or has no place of jurisdiction in Germany, Kempten shall be the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, we shall be free to make claims against the customer at their general place of jurisdiction.
