TROLLKIDS Top Sales GmbH’s Terms and Conditions
Clause 1: General Provisions
1. Our quotes are without obligation. We will deliver as specified once the order has been confirmed in writing. The order is only considered accepted once the order confirmation or the goods have been sent. We reserve the right to make changes without the explicit consent of the Customer, insofar as such changes are due to technical developments or are technical improvements. Furthermore, minor changes to colours, sizes, shapes etc. are permitted insofar as such changes can be deemed reasonably acceptable to the Customer. Specifications in the order confirmation take priority over the provisions below.
2. The Customer’s terms and conditions do not apply, even if we do not otherwise explicitly specify to the contrary. Such terms and conditions only apply if we agree to them unequivocally in writing.
3. We are entitled to deliver parts of the order, if such partial shipments can be deemed reasonably acceptable to the Customer. The invoices issued for such partial shipments are payable regardless of whether the full order is delivered.
4. Specifications, brochures or similar items that the contract is based on, as well as dimensions and weights agreed, do not, in the absence of a separate agreement in writing, constitute any guarantees of attributes or durability, but are merely product descriptions.
5. Addenda, amendments or ancillary agreements before or while placing the order are only enforceable if confirmed by us in writing.
Clause 2: Prices and Payment
1. The prices and charges we specify include the packaging, but not the delivery and
shipping costs. VAT at the applicable level must be added to the prices.
2. Unless otherwise agreed, shipments are freight collect ex works. Third parties are appointed by us carry out the shipments. Customers are not themselves entitled to appoint persons to transport the goods, or to demand that certain persons transport the goods. The Customer will be charged for shipping costs.
3. Our invoices must be paid with a 2% discount to our company’s headquarters within 10 days following delivery of the goods, or without any deduction made within 30 days after delivery.
4. If goods are returned, the Customer is credited with the same amount originally paid for the goods.
5. Delayed or cancelled payments will attract interest of 8% above the ECB’s base lending rate which is applicable at the time. Such stipulation does not apply if the Customer can prove that no or only minor losses had been otherwise incurred as a result thereof. Should the Customer default on payments, we also have a right to claim for damages caused by the default.
6. Should we become aware of any decrease in the value of Customers’ assets that in our opinion appear to put their creditworthiness and the ability to meet our payments in jeopardy, we are entitled to demand that all of the outstanding debt owed to us be settled.
7. Should Customers be in substantial default of payment, we are not obligated to continue to deliver orders until such payment has been met. If Customers do not make payments for which they are in default after a reminder has been sent and a reasonable extension period has been granted, we are entitled to appoint a debt collection company to ensure the debt is settled; the Customer is liable for the costs of such process. Furthermore, we are entitled to cancel existing orders.
Clause 3: Delivery periods
1. If Customers set us a reasonable period of time to deliver orders once we have fallen behind, Customers may withdraw from the contract should such period expire without any orders having been delivered. Such period must be at least four weeks.
2. Claims for compensation instead of performance and claims for compensation due to losses suffered by the delay are limited to losses that can be typically predicted, except in the case of indirect damage. We only accept unrestricted liability in cases of intent or gross negligence, or when lives are lost, or physical injuries or damage to health have occurred, or if key contractual rights and duties have been breached.
Clause 4: Transfer of risk
All deliveries and shipments are executed at the risk of the Customer. Transfer of risk passes to the Customer once the goods have been delivered to the person or party appointed to carry out the shipment. Such stipulation also applies if we carry out the shipment ourselves.
Clause 5: Retention of title
Shipments remain our property until all our receivables resulting from the contractual relationship have been paid in full by the Customer. Should Customers default on payment they must, at our request, hand over the goods ordered.
Clause 6: Guarantee and liability due to a defect
1. Should Customers be merchants [Kaufmann or Kaufmänner – as defined under German law] they must examine the goods upon receipt immediately in the course of proper business procedures and notify us of any defects straight away, but by three days after receipt of the goods at the latest and report such defects in writing in as much detail as possible. Should Customers fail to issue such reports, the goods received are deemed approved, unless the defect is of a nature that was not identifiable when the goods were examined. Should such a defect only reveal itself at a later date, notification in writing thereof must be given immediately, but by three days after discovery thereof at the latest; otherwise the goods are considered approved despite such defect. The same applies should a shipment be incorrect or incomplete, unless the goods clearly significantly differ from those stated on the order, so that we would have to assume that the Customer’s approval would be ruled out.
2. Should a defect exist, we may, at our discretion, put the defect right or provide a
replacement. Should the eradication of the defect be unsuccessful, or should we not be prepared or in a position to make a replacement delivery, or should such shipment be delayed for an unreasonable period, the Customer is entitled to annul the contract, or demand a reduction in the purchasing price.
3. Should complaints about defects be made, payments by the Customer may be withheld proportionate to the defects that have emerged. Customers may only withhold payments if a complaint is made about a defect and there can be no doubt that such complaint is justified. Should a complaint about a defect prove unjustified, we are entitled to demand compensation from the Customer for any costs incurred while examining whether such complaint was justified.
4. Complaints arising from defects are not justified in cases where there is a minor departure from an agreed attribute, a merely minor impairment in the ability to use the goods, normal wear and tear or losses incurred after the transfer of risk due to faulty or negligent treatment of the goods, excessive use of the goods, or special external influences that were not foreseen under the contract.
5. Should the goods for which a complaint has been issued be returned following our explicit consent in writing, the goods must be returned in a clean state and with the defect or defects clearly marked, stating the information required to process the complaint.
Clause 7: Impossibility of performance
If shipments prove impossible, the Customer is entitled to demand compensation unless we are not responsible for delivery of the shipment being impossible. However, the Customer’s entitlement to compensation is restricted to 10% of the value of the shipment, the contents of which cannot be used by the Customer as specified under contract because we cannot deliver. Such restriction does not apply insofar as liability is stipulated by law in cases of intent or gross negligence; no change in the burden of proof to the detriment of the Customer is associated herewith. The Customer’s right to withdraw from the contract is without prejudice.
Clause 8: Other entitlements to damages
1. Any claims for damages and expenses on the part of the Customer are ruled out regardless of the legal reason, in particular in the case of breach of duties arising from the contractual relationship and from wrongful acts.
2. Such stipulation does not apply if liability is legally mandated, e.g. in the Produkthaftungsgesetz [German Product Liability Act], in cases of intent and gross negligence, in the case of loss of life, physical injury or damage to health, or due to breach of key duties under the contract. The entitlement to damages for a breach of key contractual duties is however limited to the predictable loss typical of the contract, unless intent or gross negligence has taken place, or in the event of loss of life, physical injuries or impairment to health. No change in the burden of proof to the detriment of the Customer is associated with the provisions above.
Clause 9: Place of performance, choice of jurisdiction and venue
1. Place of performance is Bad Soden am Taunus, Germany.
2. The law of the Federal Republic of Germany applies.
3. The venue for all disputes arising from the contract is Frankfurt am Main, Germany
Bad Soden am Taunus, Germany, March 2012
TROLLKIDS Top Sales GmbH