Terms of Delivery and Payment for Business-to-Business (Version May 2019)
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. A contract of purchase and sale ("Sales Contract") is formed upon acceptance.
The presentation of our Goods on our website does not constitute a binding offer by us either. If the customer uses our internet portal, the customer places a binding offer when sending its order by clicking the button “Place binding order”. The contract is concluded as soon as we accept the offer by email-confirmation. The parties agree that the provisions contained in section 312i para 1 sentence 1 nos. 1-3 of the German Civil Code shall not apply.
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.
All agreements which are made at the time of conclusion of contract are fully set out in writing in the contract, including these DPT. Our employees are not authorized to enter into verbal commitments which go beyond or deviate from the written contract agreement.
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 indicated but will be charged separately as well as VAT and packing costs.
The prices applicable at the time when the order is placed shall be decisive. In the event of any changes in cost positions after conclusion of contract, which are not attributable to us and which result in an increase of our costs of performance of contract, we shall be entitled to amend the prices accordingly. We will inform the customer without undue delay. In the event of an increase of the price of more than 10 %, the customer shall be entitled to rescind the contract.
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. This restriction shall not apply to counterclaims due to defects or partial non-fulfillment of contract, which are based on the same contract as our payment claims.
IV. Passing of Risk, Delivery and Delivery Period
The Goods will be delivered ex works (EXW) 59757 Amsberg, Germany, pursuant to the Incoterms 2010, unless otherwise agreed or set out below.
Items that are not in stock 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.
If delivery is prevented by an event of force majeure such as labor disputes, riots or administrative measures we shall be entitled to postpone delivery accordingly. If such impediment lasts for more than three months, either party shall be entitled to rescind the contract. In this case, any consideration already provided by the customer shall be reimbursed without delay.
Our performance shall be subject to correct and timely self-supply.
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.
If we are default of delivery due to slight negligence, our obligation to compensate default damages (damages in addition to performance) is limited to a maximum of 5% of the net purchase price of the delayed shipment. Liability for culpable injury to life, the body or health remains unaffected. If the customer claims damages in lieu of performance, Clause IX. of the DPT applies.
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.
Licenses and compliance with applicable law
If an arms license (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 customer undertakes to comply with any applicable laws with regard to the storage, transport, handling and sale of the Goods without reservations.
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 Customer will send the retums to our plant in 59757 Arnsberg, Germany.
Should it turn out that the returned Goods are not defective or if the customer has no defect-based 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 VIII. 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 (i) we priorly consented thereto in the individual case; (ii) the Goods are new, unused and in the original packaging and (iii) a copy of the original invoice is attached thereto. In the event of custom-made 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 explicitly agreed otherwise. If it turns out during our examination that repossession is excluded in view of the age and/or the condition of the returned Goods, we reserve the right to revoke our consent within fourteen (14) days from receipt of the returned Goods.
VII. 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, is rejected by us or is impossible or unreasonable, 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 IX. 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. § 445 b of the German Civil Code shall also remain unaffected.
Repairs of the Goods which are not covered by the customer's defectbased 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.
Subject to the following provisions, we are liable for damages — on any legal ground whatsoever — only in the case of intent or gross negligence or , for damage resulting from breach of a material contractual duty. In the event of a violation of a material contractual duty by slight negligence, our liability shall be limited to the foreseeable damage typical for that kind of contract. A material contractual duty is a duty that has to be met in order to achieve the purpose of the contract and on the fulfilment of which the customer relied and could rely.
The liability for damages resulting from injury to life, body or health and the mandatory provisions of the German Product Liability Act remain unaffected by the aforementioned restrictions of liability.
Any further liability for damages — regardless of the legal nature of the asserted claim — is excluded.
If the customer claims damages for delay in addition to performance Clause IV.8 shall apply.
The aforementioned regulations shall also apply if the customer claims a refund of futile expenses in lieu of a claim for damages in lieu of performance.
As far as our liability is excluded or limited, this also applies to the personal liability of our stall members, employees, representatives and servants.
X. 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 X. 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.
XI. Export and Re-Export of Goods
The conclusion and implementation of the Sales Contract is subject to permissibility under applicable German and EU export control laws and regulations; this shall also apply to applicable US and other national laws and regulations in so far as those do not result in a violation or conflict with German or EU law.
The parties shall mutually assist each other (“duty to cooperate”) in particular by providing all necessary information and documents in order to examine and comply with any legal restrictions regarding export controls (e.g. with regard to obtaining authorizations/information from authorities or fulfilling notification duties). The customer is, in particular, obliged to inform us of an intended final destination outside of the European Union.
If we have any doubts as to whether export control restrictions are relevant, we may require that a legally conclusive statement be obtained from the competent export control authority.
If the transaction envisaged in the Sales Contract is barred due to applicable export control restrictions, either party is entitled to terminate the Sales Contract in whole or in part by written notice to the other party with immediate effect and without compensation. We are also entitled to terminate the Sales Contract in whole or in part by written notice to the customer with immediate effect and without compensation if the customer does not meet its duty to cooperate within 6 weeks following our request or fails to provide correct information and documents. The customer will not be entitled to rescind the Sales Contract if an export/ transfer license to be obtained by the customer for the export/transfer to a third party (“recipient”) is denied or withdrawn. The customer will inform us on all denials and withdrawals of export/transfer licenses. The customer will also inform us immediately if it becomes aware of any violation of export control laws and regulations concerning the Goods by the recipient.
We are not obliged to challenge a formal decision of the competent authorities or take legal action in case of unduly lengthy duration of the application proceedings.
Any claims against us based on delay or non-performance due to export control restrictions or the clarification of respective doubts are excluded except in the event of intent and gross negligence on behalf of us.
XII. 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 merchant [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.
XIII. 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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