TERMS AND CONDITIONS OF SALE AND DELIVERY KILLTEC SPORT- UND FREIZEIT GMBH RETAIL TRANSACTIONS
1. SCOPE, CONTRACT EXECUTIONThe following terms and conditions shall be applicable to offers by killtec and all purchase and sale agreements, work delivery agreements with killtec , including consultations. The general purchasing terms and conditions of the buyer shall not be acknowledged. Any agreements deviating from the above require the written confirmation of killtec.
Offers shall be non-binding. A contract shall arise with the written contract confirmation of killtec or with delivery being effected.
Improvements and other changes to models, including minor color alterations, shall be admissible if such are reasonable for the buyer.
2. PRICESThe killtec price list effective on the delivery date or the offer price plus applicable value-added tax stipulated by law shall be applicable. We reserve the right to change prices.
3. DELIVERY, DELIVERY PERIODSDelivery periods shall not commence prior to all the details of the contract being clarified in their entirety. Delivery periods shall be deemed to be complied with, if the shipment or retrieval of the deliverables is caused by the date the delivery period lapses or, in the event delivery is delayed for reasons the buyer is not responsible for, if notice is provided within the agreed upon delivery period regarding when the shipment shall be possible.
Should force majeure, strikes, or lock-outs, or any other labor dispute measures or their effects or other events outside the volition of killtec prevent killtec from fulfilling any of its delivery obligations, then the delivery periods shall be extended by the duration of such events and a reasonable time period for the recommencement of operations.
Such shall also be applicable if said circumstances occur at sub-suppliers or during any delivery default. The commencement and end of any such obstructions shall be immediately reported to the buyer. Should it be unreasonable for killtec or the buyer to fulfill the contract because a delivery is delayed, then both parties shall be entitled to withdraw from the contract. The buyer shall be authorized to withdraw from the contract in accordance with applicable law, if killtec is in delivery default or the delivery is impossible for reasons caused by killtec. For any other claims arising from such delivery default or impossibility, Item 7 of these Terms and Conditions shall be applicable.
Timely and quantity-conform partial deliveries shall be permitted and can be invoiced separately. Such shall remain subject to correct and timely delivery by the suppliers of killtec.
Delivery inside of Germany of orders having a product value of more than €100.00 shall be effected free of charge to the seat of the buyer with the transportation method chosen by killtec and at the risk of the buyer. Rush and special shipping requested by the buyer and deliveries of contracts having a product value of under €100.00 shall be effected at the cost and risk of the buyer. A flat rate surcharge shall be calculated on the basis of the price list, as such may
be amended from time to time. Deliveries to foreign countries shall in principle be effected ex works Buchholz or ex works Hamburg. Customs, import taxes, or similar fees shall be borne by the buyer.
4. PAYMENT CONDITIONSkilltec shall grant a 4% discount on deliveries inside of Germany for payments received within 10 days of the invoice date. Payment is to be rendered in the net amount without any deductions within 30 days of the invoice date. Agreed upon discount deductions shall not be permitted, as long as older payable invoices have not been paid in full. Special sales shall be effected exclusively on the basis of the net amounts and shall be immediately payable. Deliveries to foreign
countries shall, in principle, be effected in consideration of advance payment. Agreements deviating from the above shall be valid only if such are memorialized in an offer or a valid price list.
The date on which the amount has been received by killtec or credited to its bank account shall be deemed to be the date the payment was received. The risk of the payment path shall in any event be borne by the buyer. Interest accrued under applicable law shall be calculated for default periods (8 percentage points over the base interest rate). Such shall have no affect upon the right to file for other default damages. Exchanges shall not be accepted as a payment method.
Should it become evident after a contract has been executed that the claim killtec has to payment is jeopardized on account of the buyer lacking solvency, then killtec shall be authorized to demand the immediate payment of any and all of its still open claims and to effect the fulfillment of executed delivery agreements only in consideration of security or pre-payment therefor being rendered by the buyer. Such shall not affect any other claims under applicable law. The buyer can set-off its claims against the claims of killtec only if the counter-claim of the buyer has not been contested or has been established in a legally effective manner. The same shall apply to exercising any retention or service refusal rights.
The products shall remain the property of killtec until all open claims arising from the business relationship,
5. OWNERSHIP PROVISO
including any ancillary claims, have been paid in their entirety and until checks have been cashed. For current invoices, the ownership proviso shall be considered security for the account claim of killtec.
Should the proviso goods be combined with other goods not belonging to killtec, then killtec shall acquire co-ownership of the new item with the invoice value of its proviso goods being proportionate to the value of the other goods combined therewith as of the date they were combined. The buyer shall hold such for killtec in safe-keeping with the diligence of a professional.
The buyer shall be authorized to re-sell the proviso goods only with due consideration for the following provisions and only under the condition that the claims arising from the re-sale be transferred to killtec. The authorization of the buyer to sell proviso goods during the ordinary course of business shall terminate in the event killtec revokes such authorization as a consequence of any deterioration in the credit of the buyer that killtec becomes aware of. The buyer has to sufficiently insure the proviso goods, in particular, against fire and theft. Claims against insurance companies arising from cases of damages are hereby assigned to killtec in the amount of the value of the proviso goods (gross amount of killtec invoices).
The buyer hereby assigns in advance any and all claims it is entitled to at present or in the future arising from any re-sale or arising from any other legal reason regarding the goods delivered by killtec as of the date such claims are caused and in the amount of the value of the proviso goods. And killtec accepts such assignment. The value of the proviso goods shall be the invoice amount plus a security premium of 10%, which shall not be applied, however, provided that third party rights conflict therewith.
The buyer shall remain authorized to collect the assigned claims in its own name as long as it is properly fulfilling its contractual obligations vis-à-vis killtec and/or its economic situation has not deteriorated.
The buyer is to immediately notify killtec in the event the ownership rights of killtec are seized or otherwise negatively impacted by third parties and is to confirm the ownership rights of killtec vis-à-vis third parties as well. The buyer shall not be permitted to pledge or transfer the proviso goods as security. Should the value of the securities rendered to killtec exceed the claims by a total of more than 10%, then killtec shall, upon demand by the buyer, be obligated to release correspondent securities. Upon all open claims arising from the business relationship being repaid, ownership of the proviso goods and the assigned claims shall be transferred to the buyer.
6. DEFECT LIABILITYObvious or visible defects are to be immediately reported in writing, but by no later than a week after the goods have been received; non-visible defects are to be reported immediately after they have been identified. Notwithstanding any negotiations regarding the complaints, killtec shall reserve the right to object to complaints for defects that have not been inspected and objected to in a timely and proper manner. Defective goods are to be sent to killtec with the shipping order and the packaging slip and shall be improved or replaced with unobjectionable goods by and at the discretion of killtec within a reasonable period of time. Should the subsequent performance ultimately fail or should killtec allow a reasonable deadline for such subsequent performance set for it to lapse without success on account of its own culpability or should killtec refuse to render such subsequent performance or should such be impossible
or unreasonable for the buyer, then the buyer can withdraw from the contract or demand that the price be reduced. Should but minor deviations exist that do not negatively impact the functionality of the goods, then the orderer shall only be entitled to a price reduction.
Insofar as a defect has not been maliciously concealed or a guarantee regarding the quality of the goods has been given, defect liability shall be precluded if the goods are b-goods of the parties offered at sui generis conditions. Defect claims contemplated under § 437 BGB (Bürgerliches Gesetzbuch, the Civil Code) shall lapse in 12 months commencing as of the
delivery date. Item 7 of these Terms and Conditions shall be applicable to any liability regarding claims for damages.
7. GENERAL LIABILITYNotwithstanding this Item 3 para. 3, claims for damages of any kind - within and without the framework of defect liability - arising, for example, from default or impossibility, due to a violation of any other contractual obligations, arising from culpability regarding termination of any contract, arising from illegal actions or from any other legal reason, especially of claims not caused to the deliverables themselves, shall be precluded, insofar as the following two paragraphs do not contain anything to the contrary.
Liability shall only apply for malicious intent or gross negligence, for culpable injury to life, body, health, for maliciously concealed defects, for the assumption of a quality guarantee, or for defects in the deliverables, provided that liability is prescribed under the Produkthaftungsgesetz (the Product Liability Act) for material damages to privately used things or for personal damages.
killtec shall also be liable for the culpable violation of material contractual obligations; in such an event, liability shall, however, be limited to damages that are typical for the contract and reasonably predictable. Material contractual obligations shall be such obligations, the fulfillment of which enables the proper performance of the contract per se and the compliance with which the contractual partners regularly rely upon and may rely upon.
8. PLACE OF PERFORMANCE, VENUE, MISCELLANEOUSThe place of performance shall be the seat of killtec. The exclusive venue for any and all disputes with merchants or persons not having any general jurisdiction within Germany - even for check disputes - shall be Hamburg, Germany. killtec shall be authorized to take legal action against the buyer in its general jurisdiction as well.
German law shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be precluded. Provided that such are used by killtec during the order, the Incoterms 2000 shall be applicable, as they may be amended from time to time. The ineffectiveness of individual provisions shall not affect the validity of the remainder of these Terms and Conditions.
Any and all personal data shall be treated in confidence by killtec with due consideration for applicable law.
As of: 1 June 2012