General terms and conditions Graupner GmbH & Co. KG
§ 1 Contract basis
The acceptance and performance of orders for our products are exclusively subject to these general terms and conditions.
As far as we receive orders for products from the GM- Racing GmbH, we perform them by order and on behalf of the GM- Racing GmbH. These products are marked with a "*" on your invoice. For them the general terms and conditions of the GM- Racing GmbH are exclusively valid. They are the same as the general terms and conditions described here; § 11, however, is not applicable here.
Amending regulations of the customer which we do not explicitly accept in writing, are not binding for us, even if we do not explicitly contradict them.
§ 2 Delivery offer
The particulars about the articles of our delivery program are not binding. We reserve the right of prior sale and technical changes which do not include a loss of value of the offered article.
§ 3 Order
1. Orders must be made by indicating the article number and in accordance with the minimum quantities and packing units, which result from our catalogues, net price lists and our dealer information system on our website http://his.graupner.de.
2. The current prices which are available over our dealer information system on our website http://his.graupner.de are authoritative. Prices which are set by the customer and which do not match with this, are only valid if we have confirmed them in writing; the delivery is not to be regarded as an acceptance of a set price.
3. If the order of several articles only partially corresponds to the requests above, we are allowed to perform the order respecting only the corresponding part.
§ 4 Delivery
1. Dispatch: deliveries are performed ex factory. We ship the goods on invoice and risk of the customer to his address and insure the shipment on his expense against the usual transportation risks if the customer does not wish anything different. The packaging is only taken back to the extend which is legally mandatory and as far as it is sent back carriage-free.
2. Delivery time and delivery delay: Regulations of the delivery time are only binding, as far as we make or confirm them in writing. A delivery time bindingly agreed on is extended as long as it is delayed because of circumstances which are not our responsibility. If there is no delivery time bindingly agreed on, articles which can not be delivered at the moment- if nothing else has been agreed on- are mentioned as arrears and delivered either with later orders or separately when there is an opportunity of delivery.
3. Reservation of receipt of goods by our supplier: We do not take any responsibility for delivery on time by our suppliers. If certain articles are not available any more from our suppliers we can back out of the contract without the obligation of compensation for damage or expenditure.
§ 5 Invoicing
The invoicing is performed with the prices valid on the day of delivery including the cost of packaging, dispatch and insurance plus possible cost of legal VAT (value added tax). If the calculated prices differ from the definitive prices according to § 4, the customer can back out of the order by a written statement within one week from receiving our invoicing. Quantity discounts and differential prices refer individually to each order. Granting "end-of-year-discounts" which have been agreed on and which do not refer to an individual order are not affected.
§ 6 Payment
1. Mode of payment and maturity: the dispatch occurs upon advance payment or cash-on-delivery, if we did not agree to another mode of payment in writing. If delivery is performed against invoice, the invoice amount is payable 30 days after date of invoice at the latest, but not before the receipt of goods. Cheques are only accepted if payment is being fulfilled. Letters of credit are only accepted upon special agreement and if payment is being fulfilled only if they are discountable. They should not exceed a 90- days- term. Discount expenses and other costs are payable by the person on whom the letter of credit is drawn.
2. Discount: For payments within 2 weeks from date of invoice, 2% discount may be deducted. Discount is not granted for advertising media and repairs. For payments by letter of credit, deduction of discount is not allowed.
§ 7 Claims
1. General: Eventual claims due to defects or deficiencies must be indicated within 8 days after receipt of shipment; if the form on the back of the invoice copy is not being used, please indicate in writing the exact description of the defect. Especially discrepancies of the delivery and of the invoice respectively of the delivery note as well as defects in packing are to be specified.
2. Returns: Returns shall only be performed upon written agreement and against payment of cost which may occur to us unless the return of goods which had not been ordered or which are defective
3. Damages in transit: Before accepting damaged shipments, but as well when after acceptance of a shipment a damage is being revealed upon unpacking, a report is to be established together with the transport company; condition for the indemnification is the filing of the report together with all declarations required for the enforcement and the original papers (bill of lading, etc) ; if the form on the back of the two invoice copies is not used, a written declaration of renunciation of damages and an affirmation in lieu of oath concerning the damages which occurred is required.
§ 8 Repairs and guarante
If an article under consumer guarantee is being sold to the consumer later than two years after shipment, we will fulfill the obligation to claim towards the consumer within the legal statue of limitations if this is possible regarding the delivery of spare parts. In this case we are free towards the customer if the claims of the consumer towards the customer are as well being fulfilled.
§ 9 Reservations
1. The goods delivered remain our property until all our receivables from the business contract are completely paid. This also applies when single receivable have been included into a current invoice and have been balanced and accepted. The income of the equivalent is regarded as payment. At its enforcement the retention of title is limited to goods, whereas their invoice value exceeds the amount of receivable deducted eventually assigned receivables.
2. The customer is entitled to resell the reserved goods. The customer already now assigns eventual receivables resulting from the resale to us and we accept that assignment. The customer is entitled until revocation to collect the receivables. He is not entitled to pawning or collateral assignment. He commits himself to secure the reserved goods against risk of destruction or loss.
3. In case of forfeiture of assets or grave delay in payment of the buyer we are entitled to pull out of the contract and to take the reserved goods back respectively to collect the assigned receivables.
§ 10 Liability
1. A liability of Graupner on compensation of damages is limited to damages independent of the legal basis,
(a) which are founded on at least negligent injury of life, body or health by Graupner or by one of his legal representatives or accomplice, or
(b) which are founded at least on grossly negligent injury of other legal assets by Graupner or by one of his legal representatives or accomplices.
2. In case of negligently caused damages which are not mentioned under § 1, the liability of Graupner is limited to predictable damages independent of the legal basis at the moment of the conclusion of the contract.
3. The liability according to the law of product liability remains untouched.
§ 11 Supply conditions and distribution channels for model construction articles
1. In principle, delivery contracts are only concluded with specialist dealers; delivery contracts with the exclusive mail-over selling are generally excluded.
2. The conditions to for a supply are uniformly determined and are being followed without exceptions.
3. The sale to resellers within the Federal Republic of Germany which do not rank among the qualified specialist dealers mentioned in paragraph 2 is not allowed.
4. If the conditions for a supply as described in paragraph 1 and 2 is not given or will cease to apply in future we will stop the supply after successful written caution.
§ 12 Place of jurisdiction
The only place of jurisdiction for disputes resulting from contract relations ruled by those business conditions is the definitive general place of jurisdiction for any actions against us if the customer is a trader. But we will be authorized to take legal action against the customer at his general place of jurisdiction.
§ 13 Miscellaneous
1. Agreements of persons acting on our behalf which deviate from these conditions need to be confirmed in writing in their effectiveness.
2. It is not sufficient to communicate the declaration by telephone; it is to be transmitted in writing.
3. The customer must only calculate with counter-claims agreed upon in writing and legally determined.
4. According to these business conditions our headquarters is the place of performance for all performances.
5. German law is valid.