General terms and conditions
Stand 01.01.2012, TS Sportmarketing & Partner, Hamburg
§ 1 General Terms / Validity
Contracts are subject solely to our general business terms to the exclusion of all other terms. The provision of these general business terms may be overridden only in the event that we have explicitly agreed in writing to the validity of differing business terms. Our business terms are valid even if we carry out the supply of goods and services without explicitly disclaiming such terms.
All agreements between us and the customer relating to the execution of a contract have to be in the written form.
Our business terms are valid for all future business transactions with the customer.
§ 2 Quotations / Quotations documentation
Quotations alone by our company are not binding. We reserve the right to make alterations. No contract is concluded until written order confirmation has been made by us.
A contract signed by the customer is binding.
Any images, drawings, calculations and other documentation remain our property which must not be made accessible to third parties. This is applicable especially for any documentation marked as „confidential“; the customer needs our explicit written consent prior to making these documents available to third parties.
§ 3 Prices / Payment Terms
Unless otherwise determined in the order confirmation, our prices are stated „ex works“ or „ex factory“, excluding packing which will be billed separately.
We reserve the right to alter prices on which contracts are based to meet any changing cost developments, especially due to increases in material costs. These alterations would be made available to the customer upon demand.
Value Added Tax (VAT) is not included in our prices; it will be listed separately on the invoice on the day of invoice issuance in the amount provided by law.
Price reductions and discounts require prior written consent by us.
Unless otherwise determined in the order confirmation, all payments are to be made within 14 days of the invoice date without deductions. Invoices for services are payable immediately and in full, but no later than the actual date of completion of the service. If the customer is late in making part or all of his payments, all claims of our company immediately fall due for payment. Interest of at least 4% over the current discount rate of the Deutsche Bundesbank is to be charged on the amount owed. If we can document that higher financial damages have been incurred by us due to the customer's failure to pay, we have the right to assess additional charges.
The customer will only be compensated if the customer's objections have been validated in a court of law, if they are not contested or if they are accepted by us. The customer is not entitled to withhold payments if the customer's objections are disputed.
§ 4 Delivery Time
The commencement of the delivery time stated in the contract requires prior clarification of all technical questions.
If our company is in default, we are not liable for any damages resulting from negligence, irrespective of the legal grounds.
Upon default on our side, the customer may provide us with a deadline with the possibility of nullification of the contract. If fulfillment of the contract proves unsuccessful within this deadline, the customer has, at his own choice, the right to demand nullification of the contract. The customer is solely entitled to compensation due to our failure to fulfill the contract for foreseeable damages if the default was due to malicious intent or gross negligence. In any case, compensation is limited to 50% of incurred damages.
The limitations to liability stated in article (2) and (3) are not valid if all parties agreed upon a fixed commercial deal or if the customer, due to our default, can claim that his interest in fulfillment of the contract has ceased to exist.
Our compliance with our delivery terms requires the customer's proper fulfillment of his contract obligations.
If the customer is in default regarding the acceptance of product or is otherwise non-compliant, we have the right to demand compensation for any damages including additional charges due to the customer's non-compliance. At the time the customer is in default for disruption of the delivery of any sort, the cost and risk of the delivery is transferred automatically to the customer.
§ 5 Transfer of cost and risk / Packaging costs
Unless otherwise determined in the order confirmation, delivery is executed „works" or „ex factory“.
According to packaging regulations, all packaging including that used in transport, excluding pallets, is not returnable. The customer is obligated to provide proper disposal of any packaging and the timely return shipment of the pallets to us at his expense.
Upon the request and at the expense of customer, the shipment will be covered by transport insurance.
§ 6 Liability
The warranty rights of the customer assume that he complied with his duties of complaint and inquest according to §§ 377, 378 HGB.
In case of a defect for which we are responsible, we have the right to choose between replacement or repair of the goods in question. In case of repair, we only cover any expenses not exceeding the purchase price if the costs have not increased because the goods in question have been transported to a location other than the one stated in the contract.
Should we be unable or unwilling to repair or replace the goods in question, especially past a reasonable deadline due to reasons that lie in our responsibility, or is the repair or replacement of the goods unsuccessful due to other reasons, the customer is entitled choose between the nullification of the contract or a reduction of the sale price.
Unless otherwise agreed upon but irrespective of the legal grounds, the customer has no further entitlements. Therefore, we are not liable for any damages on items other than the contractually agreed goods. In particular, we are not liable for any loss of income or any other decrease in the customer's assets.
The above mentioned liability exclusions are not valid, however, if the damages were caused due to malicious intent or gross negligence but reparations are limited to the foreseeable damages. The above liability exclusions are not valid if the customer demands compensation because of non-compliance (non-fulfillment of the contract) for damages incurred due to the absence of an agreed upon contractual clause according to §§ 463, 480 article 2 BGB.
A prerequisite of our liability is, however, that we were negligent in meeting a capital contractual obligation; in these cases our liability is limited to the foreseeable damages typical to a contract.
The warranty period is 6 months and commences at such a time when the buyer takes title to the goods according to the contractual terms (INCOTERMS). The period underlies the statute of limitations and is also valid in case of demands for compensation for damages in the ensuing period, insofar as no demands are made due to unauthorized actions.
§ 7 Joint and Several Liability
Any further liability for damages other than stated in § 6 article (4) to (6) is excluded, irrespective of the legal grounds for the claim.
The regulation stated in article (1) is not valid for claims in accordance with §§ 1, 4 Produkthaftungsgesetz, as well as for cases of inability or of impossibility.
As far as our liability is excluded or limited, this is also valid for the personal liability of our employees, agents and representatives.
§ 8 Title Reservation
We retain title to the goods we supply until full and final settlement of all claims arising from the contractual relationship. In case of non-compliance on the part of the customer, especially due to failure to make payments, we reserve the right to reclaim the goods that are subject of the contract. The act of repossessing the goods does not represent the nullification of the contract, unless this was declared by us in writing prior to the fact. Repossession of the contractual goods on our part always represents a nullification of the contract. Upon repossessing the goods, we are entitled to sell them. The proceeds resulting from the sale are to be applied to the customer's debt, minus any legitimate administrative costs.
The customer is required to handle the goods in an adequate manner; in particular, the customer is obligated to insure the merchandise adequately insured (value of unused product) at his expense against fire, water damage and theft. If maintenance and inspections are necessary, the customer has to perform these in a timely manner at his expense.
In case of repossession or any other interference of a third party, the customer is obligated to notify us immediately in writing, so that we may sue according to § 771 ZPO. If the third party is unable to reimburse us for any legal and related expenses according to § 771 ZPO, the customer is liable for the above expenses.
The customer may resell the goods supplied only in the course of normal commercial transactions. With the signing of the contract, the customer assigns any accounts receivable resulting from the resale (amount of the total invoice amount including VAT) or from any other legal ground to us as security, regardless whether the product was sold as purchased or after further processing. Even after a title transfer, the customer retains the right to collect the assigned claims. Our right to collect the assigned claims ourselves, remains intact. We are obligated, however, to refrain from any collection as long as the customer meets his contractual payment obligations, is not late in making part or all of his payment and in particular, as long as the customer does not file for bankruptcy or is otherwise unable to make payments. Should this be the case, however, we reserve the right to demand that the customer discloses the transferred claims and their debtors, as well as all necessary information and documents essential to the repossession. The customer is required to inform the debtor (third party) of the transfer.
If the goods are being combined with other goods that are not our property, we procure part ownership of the new product to the extent of the correlation of the value of the goods to the other added components at the time of their combination. The same contractual provisions apply to the new combined product than to the original goods subject of the contract.
If the goods are inseparably combined with other components that do not belong to us, we are entitled to part ownership of the new product to the extent of the correlation of the value of the goods to the other added components at the time of their combination. If the goods subject of the contract represent the principal component of the new product, it is agreed that the customer transfers part ownership to us. In this case, the customer is responsible for the safekeeping of the product for us.
In order to secure our claims, the customer is required to transfers all accounts receivable from third parties to us that arise out of the inseparable combination of the goods subject of the contract with other items.
On demand of the customer, we are obligated to present security to the extent that the realizable value of our security exceeds the accounts payable to be insured by more than 20%; the choice of securities is ours.
§ 9 Place of Performance and Jurisdiction
The place of jurisdiction is our headquarters. This is also applicable if the customer changes his business address (for business transactions) or home address (for non-business transactions) after the signing of the contract to a location outside the Federal Republic of Germany or if this address is unknown at the time court proceedings begin. We reserve the right to sue the customer at this home address.
Unless otherwise determined in the order confirmation, our business address is the place of performance.
Phone +49 40 23 64 43 33