§ 1 General – Scope of validity
1. The following Terms and Conditions shall be valid for all current and future business relationships with the customer. For service orders for our archiving centres, our supplementary Sales and Delivery Conditions for the archive centres shall apply.
2. Consumers within the definition of the Terms and Conditions shall be natural persons with whom business relationships are entered into without their being attributable any commercial or self-employed job activity. Entrepreneurs within the
definition of the Terms and Conditions shall be natural or legal persons or partnerships with legal capacity with whom business relationships are entered into and who/which deal in a commercial or self-employed job activity. Customer within
the definition of the business relationships are not only consumers but also entrepreneurs.
3. Deviating, opposing or supplementary General Terms and Conditions of the customer shall not become a contract component – even if they are known – unless their validity will be explicitly consented to in writing.
4. We have assigned our claims – within the scope of a current factoring contract – to EUROFACTOR AG, Bajuwarenring 3, D-82041 Oberhaching b. München or respectively, Postfach (Post Office Box) 11 07, D-82032 Deisenhofen. Nonetheless,
product liability shall remain exclusively with us. Any product responsibility of EUROFACTOR AG shall be excluded. We shall be entitled to record, store, process, use information and data about the customer and to transmit them to third parties,
in particular for the purpose of claims collection or the outsourced debtors management for storage, processing and utilization.
§ 2 Contract conclusion
1. Our offers shall be non-binding. Technical changes as well as changes in form, colour and/or weight shall be reserved within the scope of reasonableness. This shall also apply for the printing quality of the provided printer profiles.
2. With the order of goods, the customer bindingly declares that he wants to acquire the ordered goods.We shall be entitled to accept the contract offer inherent in the order within two weeks after receipt at us. Acceptance can either be declared
in writing (also by invoice or delivery note) or by delivery of the goods to the customer.
3. If the customer orders the goods electronically, we shall immediately confirm receipt of the order. The confirmation of receipt shall not yet present any binding acceptance of the order. The confirmation of receipt can be connected with the declaration
of acceptance. In case of ordering electronically, the contract text shall be stored by us and mailed to the customer upon request, via e-mail, in addition to the available General Terms and Conditions.
4. We shall always endeavour to deliver as fast as possible. There are no fixed terms of delivery. If, in deviation from this, a fixed delivery date has been stipulated, the customer shall set, in case of arrears of the delivery, a reasonable late period of
four weeks, as a rule. Contract conclusion shall be at the condition of proper and on-time self delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, especially in case of conclusion of a congruent
covering transaction with our supplier. The customer shall be immediately informed of a sustained non-availability of the service/performance. The consideration shall be reimbursed.
§ 3 Force majeure
Force majeure of any kind, unforeseeable operating, traffic or shipment disturbances, fire damage, floods, unforeseeable lack of labour forces, energy, raw materials or auxiliary materials, strikes, lock-outs, orders by the authorities, or other obstacles
for which the party who is liable to make performance will not be responsible and which will reduce, delay, prevent or make unreasonable either the manufacture, the shipment, the acceptance or the consumption shall release from the obligation
of delivery or acceptance for the duration and extent of the disturbance. If, due to the disturbance, the delivery and/or acceptance is exceeded by more than eight weeks, both parties shall be entitled to a rescission. In case of a partial or complete
cessation of our supply sources, we shall not be obligated to stock up from unknown upstream suppliers. In this case, we shall be entitled to distribute the
available quantities of stock, taking into account internal requirements.
§ 4 Shipment
We shall reserve the right to select the way of shipment and the type of shipment. Extra costs caused by the customer’s special requests for shipment shall be paid by the customer. The same shall apply for any increases of the freight rates which
came about after contract conclusion, any extra costs for re-consignment, storage costs, etc., unless freight-free delivery has been agreed upon.
§ 5 Reservation of ownership
1. In contracts with consumers, we shall reserve ownership rights in the goods until complete payment of the purchase price. In contracts with entrepreneurs, we shall reserve ownership rights in the goods until complete settlement of all claims
from a current business relationship, including auxiliary claims, damage claims and payments of checks and bills. The ownership reservation shall also remain if individual claims have been included into a current invoice and the balance has
been drawn and accepted.
2. The customer shall be obligated to treat the goods carefully. If maintenance and inspection work is required, the customer shall perform them regularly at his own cost.
3. The customer shall be obligated to advise us immediately of any third party access to the goods, for example in the course of attachment, as well as of any damage or destruction of the goods. The customer shall immediately advise us of any
change in possession as well as of his or her own change of residence.
4. In case of the customer’s conduct in violation of the contract, in particular, in case of payment arrears or in case of a breach of the obligations according to Clause 3 and 4 of this provision, we shall be entitled to withdraw from the contract
and to demand surrender of the goods. However, with regard to entrepreneurs, the claim of the reservation of ownership in itself does not yet represent such declaration of withdrawal. Any return of the goods shall only be for the purpose of
security; this does not represent any withdrawal from the contract, even if partial payments have subsequently been allowed.
5. The entrepreneur shall be entitled to further sell the goods in the proper course of business. Now already, he shall assign to us all claims in the amount of the amount of the invoice which he is entitled to, due to the further sale versus a third
party.We shall accept the assignment. After the assignment, the entrepreneur shall be entitled to collect the claim.We shall reserve the right to collect the claim ourselves as soon as the entrepreneur does not properly meet his or her payment
obligations and is in arrears with payment. If the realization of our claims seems to be jeopardized to us, the entrepreneur shall advise his or her customers of the assignment – upon a corresponding request by us – and he
or she shall make available to us any required information and documents which are required for the immediate enforcement of our rights.
6. Handling and processing of the goods by the entrepreneur shall always be in our name and on our order. If processing is done with articles not belonging to us, we shall acquire, in the new object, the co-ownership at the ratio of the invoice
value of the goods delivered by us to the invoice value of the other processed objects. The same shall apply if the goods are mixed with other objects which do not belong to us.
7. If the value of the securities to which we are entitled exceeds by more than 20% the claims to be secured versus the entrepreneur, we shall be obligated in so far to the release of securities upon the entrepreneur’s request.We shall select the
securities to be released.
8. All rights existing in our favour from the stipulated security agreements – in particular the ownership by way of security and the reservation of ownership in any form – shall be assigned to EUROFACTOR AG.
§ 6 Right of cancellation
Consumers shall have a right of cancellation for any contracts which have been concluded by the exclusive use of telecommunication means. Telecommunication means are means of communication which can be used for the preparation or the
conclusion of a contract between a consumer and an entrepreneur without the simultaneous bodily presence of the contracting parties, in particular letters, catalogues, telephone calls, faxes, e-mail, as well as radio, TV and media services.
1. Within two weeks after the receipt of the goods, the consumer shall have the right to cancel his declaration of intent directed toward the conclusion of the contract. The cancellation need not include any reason and shall be declared in form of
text or by returning the goods to the seller; punctual sending shall be sufficient for observance of the deadline. The cancellation shall be declared versus Neschen AG, Hans-Neschen-Straße 1, 31675 Bückeburg.
2. We shall reserve the right to deliver the goods only after expiration of the right of cancellation.
3. When exercising the right of cancellation, the consumer shall be obligated to return shipment if the goods can be sent by package. The consumer shall pay the costs of the return shipment in case of an order value of up to Euro 40.00, unless
the delivered goods are not in accordance with the goods ordered. In case of an order value of over Euro 40.00, the consumer shall pay the costs of the return shipment.
4. The consumer shall replace the value for any deterioration due to the proper use of the goods. The consumer may examine the goods carefully and with circumspection. The consumer shall pay for the loss of value which is due to a utilization
going beyond a mere examination, which results in the goods no longer being able to be sold as “new”.
§ 7 Remuneration
1. The offered purchase price shall be the net price ex works. The minimum order value shall be Euro 125.00; for orders of up to Euro 250.00, a surcharge of Euro 12.50 shall apply for smallvolume purchases. In destination shipment sales, for
consumers, a flat charge for shipment costs shall be paid in the amount of Euro 15.00 for up to 31 kg weight of goods; Euro 25.00 for 32 kg to 99.99 kg weight of goods, and Euro 30.00 from 100.00 kg weight of goods. For entrepreneurs,
shipment costs shall be billed according to actual expenditures. The customer can pay the purchase price by cash on delivery, on account, or by Euro card (Master credit card) and Visa credit card.
2. Payment shall be made within 30 days as of the invoice date without deduction, or within 8 days as of the invoice date with a 2% discount. After expiration of 30 days as of the invoice date, the customer shall be in delay of payment. In full
satisfaction of the debt, payments can only be made to the account of the EUROFACTOR AG explicitly indicated in the invoice. Decisive for the date of payment shall be the crediting to the aforementioned account of the EUROFACTOR AG. If
the customer is in arrears with the payment of an invoice or instalment, all invoice or instalment amounts which are still open shall be immediately due for payment. During the arrears, the consumer shall pay interest for the payment owed
in the amount of 5 % above the basic interest rate. The entrepreneur shall pay interest, during the arrears, in the amount of 8% above the basic interest rate for the payment owed. Versus the entrepreneur, we shall reserve the right to prove
higher damages due to the arrears and to enforce them.
3. The customer shall only have a right of offsetting if his counterclaims have been legally enforceably established or accepted by us. The customer may only exercise a right of retention if his counterclaim relies on the same contractual relationship.
§ 8 Passage of risk
1. If the buyer is an entrepreneur, the risk of accidental loss and the accidental deterioration of the goods shall pass to the buyer upon the surrender, in case of the purchase to destination, upon the delivery of the goods to the forwarding agent,
the carrier, or any other person or institution charged with the execution of the shipment.
2. If the buyer is a consumer, the risk of accidental loss and the accidental deterioration of the sold goods shall pass to the buyer only with the surrender of the goods, even in case of the purchase to destination.
3. It shall be equivalent to surrender if the buyer is in arrears with the acceptance.
§ 9 Warranty
1. If the buyer is an entrepreneur, we shall initially provide warranty for defects of the goods, either by a remedy of defects or by a replacement delivery.
2. If the buyer is a consumer, he shall initially have the option of whether the late performance should be by a remedy of defects or by a replacement delivery. However, we shall be entitled to refuse the type of the selected late performance if it is
only possible at unreasonable costs and if the other type of late performance remains without considerable disadvantages for the consumer.
3. If late performance fails, the customer can only demand, at his or her option, a reduction of the remuneration (abatement) or a cancellation of the contract (rescission). In case of only a minor lack of conformity with the contract, especially with
only minor defects, the customer shall have no right of rescission, however.
4. Entrepreneurs shall immediately advise us in writing of any obvious defects with an indication of the invoice number, product name, dimension, batch number, quantity of material and description of the defect; at the latest, however, within a
period of one week as of the receipt of the goods; otherwise, assertion of the warranty claim shall be excluded. Punctual sending shall be sufficient for observance of the deadline. The entrepreneur shall have the full burden of proof for all
claim prerequisites; in particular, for the defect itself, for the time of establishing the defect and for the punctuality of the notice of defect. Consumers must inform us in writing about obvious defects within a period of two months after the
point in time at which the goods’ condition in violation of the contract had been detected. Decisive for observance of the deadline shall be the receipt of the notification with us. If the consumer fails to make this notification, the warranty rights
shall expire two months after determination of the defect. This shall not apply in case of the seller’s fraud. The consumer shall have the burden of proof regarding the time of establishing the defect. If the consumer was moved to buy the goods
due to an inaccurate manufacturer’s statement, he shall have the burden of proof for his purchase decision. For used goods, the consumer shall have the burden of proof regarding the defectiveness of the goods. Until conclusion of the
complaint processing, we shall reserve the right to request the material complained about from the customer for the purpose of laboratory tests.
5. If the customer selects the rescission from the contract due to a legal or material defect after the post-performance has failed, the customer shall have, aside from that, no damage claim due to the defect. If the customer selects to claim damages
after the post-performance has failed, the goods shall remain with the customer if this is reasonable for him. The damage claim shall be limited to the difference between the purchase price and the value of the defective goods. This shall
not apply if we had fraudulently caused the breach of contract.
6. For entrepreneurs, the warranty period shall be one year as of the delivery of the goods. For consumers, the period of statutory limitation shall be two years as of the delivery of the goods. For used goods, the period of statutory limitation shall
be one year as of the delivery of goods. This shall not apply if the customer had not notified us on-time of the defect (Clause 4 of this provision).
7. If the buyer is an entrepreneur, the manufacturer’s product description shall principally be stipulated as the quality of the goods. Aside from that, the manufacturer’s public statements, recommendations or advertisements shall not be considered
any contractual statement for the quality of the goods. As far as textiles are the subject of the commercial transaction, the error/fault tolerances shall be applicable which have been separately described for textiles in the catalogue under the
heading “processing information”.
8. If the customer receives deficient assembly instructions, we shall be merely obligated to supply defect-free assembly instructions and this also only if the defect in the assembly instructions stands in the way of proper assembly.
9. The customer shall not receive any guarantees in the legal sense from us. Manufacturer’s guarantees shall remain unaffected thereby.
§ 10 Limitations of liability
1. With a slightly negligent breach of obligation, our liability shall be limited to the foreseeable, contract-typical, direct average damage depending on the type of the goods. This shall also apply for slightly negligent breaches of obligations by
our legal representatives or vicarious agents. Damage claims by the entrepreneurs – even of an extra-contractual type – shall be excluded in the case of a slightly negligent breach of obligation by our legal representatives and other vicarious
agents, unless the breach involves an obligation which is of essential significance for achieving the contractual purpose.
2. The above limitations of liability shall not concern the customer’s claims for product liability. Furthermore, the limitations of liability shall not apply in case of unattributable bodily or health damages or in case of the customer’s loss of life.
3. The customer’s damage claims due to a defect shall come under the statute of limitations after one year from the delivery of the goods. This shall not apply if we can be charged with fraud.
§ 11 Final provisions
1. The law of the Federal Republic of Germany shall be applicable. The provisions of the UN Purchase Rights shall not be applicable. The regulations of the UN Convention regarding the Assignment of Claims in International Trade and Commerce
shall now already be considered agreed upon as being subject to a condition precedent for the moment of their coming into effect.
2. If the customer is a merchant, a legal entity under public law, or public-law special funds, the legal venue for any disputes under this contract shall be optionally our seat of business or, respectively, the seat of business of EUROFACTOR AG.
The same shall apply if the customer has no general legal venue in Germany, or if the residence or usual abode are not known at the time of filing the action. Bückeburg shall be the place of performance.
3. If individual provisions of the contract with the customer – including these General Terms and Conditions – should be or become wholly or partly void, the validity of the remaining provisions shall not be affected by it. The wholly or partially
void provision shall be replaced by a provision, the economic success of which comes as close as possible to that of the void provision. The same shall apply for filling a gap in the contract with the customer or in these General Terms and
Conditions.
General Terms and Conditions of Neschen AG, Hans-Neschen-Straße 1, D-31675 Bückeburg
Version: April 2005