Terms of Delivery and Payment for Business-to-Business (Version September 2013)
I. Scope of Application
The following General Terms of Delivery and Payment (“DPT”) apply to all deliveries of arms, ammunition and other products (“Goods”) of UMAREX GmbH & Co. KG (“we” or “us”) to our customers. The deliveries to customers are exclusively governed by our DPT. We do not accept terms of the customer which are conflicting or which diverge from or supplement our DPT, unless we have expressly approved them in writing. Our DPT also apply if we make delivery without reservation even if we are aware of conflicting or diverging terms of the customer.
Individual agreements take precedence over our DPT.
Our DPT only apply to customers which are entrepreneurs (Sec. 14 German Civil Code), legal persons under public law or special funds under public law within the meaning of Sec. 310(1), sentence 1 German Civil Code.
II. Offer, Order, Order Confirmation
Our offers are non-binding and without engagement. The customer’s order is deemed a binding offer to enter into a contract (“Order”). Unless otherwise stated in the Order, we are entitled to accept the offer within three (3) weeks
from receipt thereof by us. Acceptance may be in the form of our written confirmation (“Order Confirmation”) or delivery of the Goods to the customer within fourteen (14) days from the order date. A contract of purchase and sale (“Sales Contract”) is formed upon acceptance.
Notwithstanding Clause II. 3. of the DPT, our Order Confirmation governs the contents of the Sales Contract. This also applies if the Order Confirmation contains minor or customary deviations from the Order. Such deviations are deemed approved if we do not receive a written objection of the customer within fourteen (14) days from receipt of the Order Confirmation by the customer. If the Order and the Order Confirmation match, the customer has no right to object.
In the case of custom-made items, the quantity delivered may vary by up to ten per cent (10%) as a result of production-based rejects without this fact entitling the customer to subsequent delivery or non-acceptance or any other complaint based on the divergent quantity delivered. Only the quantity actually delivered will be invoiced.
Any and all collateral agreements to or amendments or additions to a Sales Contract shall only be valid if in writing.
III. Prices, Payment Terms
Unless otherwise agreed in the individual case, our prices apply “ex works” plus statutory VAT, as the case may be, and plus any packing costs. Freight, transport or insurance costs or customs duties, if any, are not included in the prices without prejudice to Clause IV. 3. of the DPT. VAT and packing costs, if any, will separately be charged to the customer. The prices applicable at the time when the order is placed shall be decisive.
For orders where the net value of the Goods is less than EUR 150.00, we charge the customer a handling fee of EUR 8.00.
Unless otherwise agreed, the purchase price is due and payable within thirty (30) days from invoicing and delivery of the Goods to the customer. Receipt of the funds on our account shall be decisive for establishing observance of the period set for payment.
After expiry of the aforesaid period set for payment, the customer will be in default without warning. If the customer defaults in payment, we are entitled to demand default interest in an amount equal to eight per cent (8%) above the base rate of the European Central Bank. We reserve the right to prove greater damage caused by default.
In the event of default or if, after conclusion of the Sales Contract, we become aware of facts which give rise to reasonable doubt as to the customer’s solvency, we are entitled in accordance with the statutory provisions to exercise a right to refuse performance regarding all still outstanding deliveries and/or to rescind the relevant Sales Contract after a time limit has been set without result (Sec. 321 German Civil Code). Further statutory rights to claim damages in lieu of performance or reimbursement of expenses remain unaffected. If the customer simultaneously defaults on two (2) or more Sales Contracts, we are entitled to declare all our claims against the customer to be immediately due and payable. This does not apply if the customer is not responsible for the default.
The customer has set-off rights or rights of retention only if the customer’s claim has become res judicata, is uncontested or has been accepted by us.
IV. Passing of Risk, Delivery and Delivery Period
If an arms licence (Sec. 4 German Arms Act) and/or an arms trading licence (Sec. 21 German Arms Act) is required for the purchased Goods, we will only deliver the Goods to the customer if the customer provides us with a certified copy of its relevant licence. Any change or withdrawal of the licence must immediately and automatically be notified to us.
The Goods will be delivered ex works (EXW) 59757 Arnsberg, Germany, pursuant to the Incoterms 2010, unless otherwise agreed or set out below. Thus, the customer is obliged to obtain at his own risk and expense, any export licence, import licence and/or other official authorization and carry out all customs formalities for the export of the Goods. At the customer's request, we will provide the customer at his own risk and expense assistance in obtaining any export licence and/or other official authorization necessary for the export of the Goods and any information in our possession that is required for the security clearance of the Goods.
For deliveries with an order value (net value of the Goods) of EUR 500.00 or more no shipping costs will be charged within Germany; however, a lump sum equal to 0.35% of the net value of the Goods delivered will be charged for transport insurance and a lump sum of 0.25% of the net value of the Goods delivered will be charged for truck toll in addition. We charge flat rate shipping costs of EUR 6.00 for an order value of less than EUR 500.00, or EUR 8.00 for an order value of less than EUR 250.00, plus the lump sums referred to in sentence 1 for transport insurance and truck toll in each case.
Deliveries of dangerous goods within Germany are exempted from the regulation in Clause IV. 3. of the DPT. They will be shipped by a forwarding agent at the following flat rate shipping costs, in each case plus a lump sum of 0.35% of the net value of the Goods delivered for transport insurance and a lump sum of 0.25% of the net value of the Goods delivered for truck toll. Value of the Goods up to EUR 500.00: EUR 15.00 Value of the Goods up to EUR 1,000.00: EUR 17.50 Value of the Goods up to EUR 1,500.00: EUR 20.00 Value of the Goods up to EUR 2,000.00: EUR 22.50 Value of the Goods above EUR 2,000.00: EUR 25.00
Items that are not available will be combined and be delivered subsequently in one shipment. Partial deliveries are permissible to an extent reasonable for the customer.
Any delivery periods will be agreed upon individually and will only be binding if confirmed by us in writing with the binding nature thereof expressly being referred to. Otherwise, such delivery periods are only to be understood as an approximate indication.
All delivery periods indicated by us only start to run upon receipt of our Order Confirmation by the customer. Binding delivery periods are deemed observed if we make the Goods available ex works by the end of the relevant period.
In the event of non-observance of a binding delivery period for reasons for which we are not responsible (non-availability of the Goods), we will immediately notify the customer thereof and inform the customer about the anticipated new delivery period. If the Goods are not available during such new delivery period either, we are entitled to rescind the Sales Contract, in whole or in part. Any consideration already provided by the customer shall be reimbursed without delay. Our statutory rights of rescission and the statutory provisions on the contract handling upon exclusion of the duty to perform remain unaffected. The statutory rights of rescission of the customer also remain unaffected.
The occurrence of default in delivery by us is governed by the statutory provisions. A warning by the customer is required in any case (both for binding and non-binding delivery periods). In the case of a non-binding delivery period, the customer may issue a warning two (2) weeks after non-observance of the non-binding delivery period. If we are in default, the customer must set a reasonable additional period of four (4) weeks for us to make delivery; if no delivery is made by the end of such additional period, the customer may rescind the Sales Contract. The customer is entitled to damage claims, if any, in accordance with Clause VIII. of the DPT.
If the delivery of the Goods is delayed at the customer’s request, we will – starting two (2) weeks after notice of the readiness of the Goods for delivery – charge the customer the additional costs caused by the storage until the time of actual delivery. We are also entitled, after setting and expiry of a reasonable additional period and with prior notice, to otherwise dispose of the Goods concerned and to make delivery to the customer during a reasonably extended additional period. We will inform the customer without delay of such additional period.
Prior written notice by the customer and our prior Order Confirmation shall be required for returns of any kind for the purpose of proper processing. The Goods must be returned properly, as far as possible in the original packaging. A copy of the original invoice must be attached to the returned Goods.
The Customer will send the returns to our plant in 59757 Arnsberg, Germany, at the customer’s own cost and expense.
We will examine the returned Goods as to whether there is a defect on the basis of which the customer has defect-based rights against us.
Should it turn out that the returned Goods are not defective or if the customer has no defectbased rights for any other reason, the customer shall bear the costs of the return; in this case, we will not reimburse such costs. This also applies where it is certain already before the Goods are returned that the customer has no defect-based rights and the customer nevertheless returns the Goods for repair purposes (see Clause VII. of the DPT).
Other than in cases of liability for material defects or other statutory rights of rescission of the customer, we take back Goods only if we priorily consented thereto in the individual case (consent) and the Goods are new, unused and in the original packaging. In the event of custommade items or damaged Goods any such taking back is excluded. Taking back is further conditional on the Goods being shipped to us free of charge. With such return, the customer undertakes to pay flat rate examination and restorage costs in an amount equal to twenty per cent (20%) of the value of the Goods, unless a higher cost share is justified or repossession is excluded in view of the age and/or the condition of the returned Goods. In any case, we reserve the right to revoke our consent within fourteen (14) days from receipt of the returned Goods.
VI. Defect-based Rights
The customer shall carefully examine the Goods immediately after delivery thereof. The customer will notify us in writing of any defect of the Goods without delay, however not later than within seven (7) days from delivery of the Goods. Latent defects will be notified to us in writing by the customer without delay, however at the latest within seven (7) days from ascertainment of the defect.
If the delivered Goods are defective and the defect or the cause thereof already existed at the time of passing of the risk, we are entitled to make subsequent performance at our choice either by rectification of the defect or replacement. If the rectification of the defect or the replacement fails, the customer shall have the right, at its choice, to demand reduction of the price or to rescind the Sales Contract without prejudice to any claims for damages or for reimbursement of expenses pursuant to Clause VIII. of these DPT.
All claims of the customer based on defects become statute-barred twelve (12) months after delivery of the Goods. This period does not apply if we acted with intent or gross negligence or in the case of liability for injury to life, health or body. Furthermore, it does not apply if we are liable under a guarantee or in the event of intentional deceit on our part or if a longer period is prescribed by mandatory law.
Repairs of the Goods which are not covered by the customer’s defect-based rights require a separate agreement between us and the customer and must be paid for separately. At the customer’s request, we will provide a written cost estimate before the repair; however, where the estimated repair costs are less than EUR 50.00, we will not provide such cost estimate.
Unless otherwise provided in these DPT including the provisions below, we are liable in accordance with the statutory provisions applicable from time to time in the event of breach of contractual and/or statutory obligations.
We are liable for damages – on any legal ground whatsoever – only in the case of intent or gross negligence. In addition, we are also liable in the case of ordinary negligence in accordance with the statutory provisions (i) for damage resulting from injury to life, body or health and (ii) for damage resulting from breach of a material contractual duty with the amount of damages, in this case, being limited to the foreseeable typical damage. A material contractual duty exists if the breach of duty relates to a duty on the fulfilment of which the customer relied and could rely. The mandatory provisions of the German Product Liability Act and other mandatory statutory provisions remain unaffected.
Any further liability for damages – regardless of the legal nature of the asserted claim – is excluded.
As far as our liability is excluded or limited, this also applies to the personal liability of our staff members, employees, representatives and servants.
IX. Retention of Title
The delivered Goods remain our property (“Retention Goods”) until fulfilment of all our receivables from and claims against the customer within the framework of the business relationship (including any current account balance claims). This applies as far as permissible under the law of the country within the jurisdiction of which the Retention Goods are located according to the contract. If, according to such law, retention of title to the delivered Goods is not permitted, but similar rights may be reserved, we are entitled to assert such rights. The customer undertakes to support all measures to protect the title to, or the security interest in, the delivered Goods.
Before payment in full of the secured receivables, the Retention Goods may neither be pledged to a third party nor may the ownership thereof be assigned to a third party by way of security. The customer shall immediately inform us in writing if and to the extent that a third party seizes the Retention Goods.
The customer is authorized to resell the Retention Goods in the ordinary course of business. The resale authority is excluded if a prohibition of assignment applies internally between the customer and its customers with respect to its receivables.
The customer, here and now, assigns to us as security the full amount of receivables from third parties arising from the resale of the Retention Goods. We hereby accept such assignment. The obligations of the customer referred to in Clause IX. 2. of these DPT also apply in relation to the assigned receivables. The customer remains entitled to collect the receivables in addition to us. We undertake not to collect the receivables as long as (i) the customer fulfils its payment obligations owed to us, (ii) does not default in payment, (iii) no application for the opening of insolvency proceedings has been filed, and (iv) there is no other lack of ability to perform on the part of the customer. Upon occurrence of any of the aforesaid events, the customer’s collection authority expires even without express revocation. In that case, we can demand that the customer informs us of the assigned receivables and the debtors thereof and provides all information required for collection, hands over the pertaining documents and informs the third party of the assignment.
If the customer acts contrary to the contract, in particular in the event of non-payment of the due purchase price, we are entitled, according to the statutory provisions, to rescind the Sales Contract and to reclaim the Goods on the basis of the retention of title and the rescission.
If the realizable value of the collaterals exceeds our receivables by more than ten per cent (10%), we will release collaterals at our choice upon written request of the customer.
X. Export and Re-Export of Goods
The Goods are intended for use in the European Union. If the customer intends to export or reexport the Goods to destinations outside the European Union the customer will obtain all necessary export control authorisations at its own expenses and on its own behalf and comply with all applicable export control provisions, in particular German Foreign Trade Act [Außenwirtschaftsgesetz (AWG)], German Foreign Trade Ordinance [Außenwirtschaftsverordnung (AWV)], EU Dual Use-Regulation (EC) No. 428/2009 and EU Regulation Implementing the United Nations’ Fire Arms Protocol (EC) No. 258/2012. Any export or re-export of Goods violating any applicable export control provisions is not permitted.
The subsection above shall apply accordingly if an export control authorisation is required for export or re-export of Goods to destinations outside Germany but within the European Union or if an export control authorisation is required for providing the Goods to persons, entities or bodies subject to embargoes or other restrictive measures. If delivery of the Goods to the customer requires an export control authorisation, e.g. in the event of an intended final destination outside the European Union, the customer shall obtain all necessary export control authorisations at its own expenses and on its own behalf and provide us with all relevant documents, e.g. export control authorisation, end use certificate.
The customer is obliged to inform itself and keep itself informed about all applicable export control provisions including any amendments of these provisions, in particular EU Dual Use-Regulation (EC) No. 428/2009 and EU Regulation implementing the United Nations’ Fire Arms Protocol (EC) No. 258/2012. We are not obliged to give any information, advice or assistance to the customer.
If an export control authorisation requested by the customer is denied or if an export control authorisation obtained by the customer is withdrawn the customer will not be entitled to rescind the Sales Contract. The customer will inform us on all denials and withdrawals of export control authorisations.
The customer agrees to commit any third party to whom it transfers the Goods (“recipient”) to comply with the provisions of this section accordingly. If the customer becomes aware of any violation of export control provisions concerning the Goods by the recipient the customer shall inform us immediately.
The customer will indemnify us against any and all costs incurred in the context of a violation of the obligations of this section by the customer or by any recipient.
XI. Place of Jurisdiction, Applicable Law
The exclusive place of jurisdiction for any disputes arising from or in connection with these DPT or in connection with Sales Contracts concluded hereunder shall be Arnsberg if the customer is a business person [Kaufmann], a legal person under public law or a special fund under public law. However, we are also entitled to sue the customer before the court having jurisdiction over the customer pursuant to Secs. 12, 13 German Code of Civil Procedure.
Any disputes arising from or in connection with these DPT or the Sales Contracts concluded hereunder shall exclusively be governed by the laws of the Federal Republic of Germany with the United Nations Convention on Contracts for the International Sale of Goods (CISG) being excluded.
XII. Final Provisions
If any provision of these DPT, in whole or in part, has not become part of the contract or is invalid or null and void, or if these DPT contain a gap, this shall not affect the validity of the remaining provisions of these DPT.
If any provision has not become part of the contract or is invalid or null and void, the statutory regulations shall apply. In the absence of a relevant statutory regulation, such provision shall apply in lieu of the provision, which has not become part of the contract or which is invalid or null and void, as would have been stipulated by the parties if they had considered that point from the outset; in this connection, the economic interests of both parties must reasonably be considered. The preceding sentence applies mutatis mutandis in the event of any gap.
UMAREX GmbH & Co. KG
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