Terms & Conditions

General Terms and Conditions of Business and Delivery

of Nürnberg Gummi Babyartikel GmbH & Co. KG, Breitenloher Weg 6, 91166 Georgensgmünd

 

I. General Provisions

1. We make deliveries solely and exclusively on the basis of the Terms and Conditions of Business and Delivery below. The above provision applies to any and all present and future business relationships with our customers.

2. Deviating, contrary or supplementary general terms and conditions of business of the Customer shall not become a component of the contract, even if we are aware of them, unless we have given our express written consent to their application.

3. Any and all agreements concluded orally by our employees, including the field sales representatives, shall not be binding unless we have confirmed them in writing.

4. The Terms and Conditions of Delivery and Payment are not intended for application with respect to consumers within the meaning of Section 13 BGB (German Civil Code)

 

II. Conclusion of Contact

1. Our offers are made subject to change. We reserve the right to make reasonable technical modifications and modifications in shape, colour and/or weight.

2. We are entitled to accept the offer to conclude a contract inherent in the Customer's order within two weeks of its receipt at our business. The acceptance may be declared either in writing or by delivery of the merchandise to the Customer.

3. If the Customer orders the merchandise by means of electronic communication, we will confirm the receipt of the order immediately. The confirmation of receipt shall not itself be deemed a binding acceptance of the order, but the confirmation of receipt may be combined with the declaration of acceptance.

4. If and when the Customer orders the merchandise by means of electronic communication, we will store the contract text and, upon request, send it together with these Terms and Conditions of Delivery and Payment to the Customer by e-mail.

5. The conclusion of the contract is subject to the reservation that we receive deliveries properly and in due time from our own suppliers. The above provision applies solely in the event that we are not accountable for the delivery failure, in particular in the case of a congruent cover transaction with our supplier. The Customer will be notified of the non-availability of the performance without delay. Any consideration which has already been rendered will be reimbursed without delay.

6. The cancellation of orders which have already been placed shall not be binding unless we have given our consent. In this case, we may request from the Customer reimbursement of any expenses we have occurred as of that time. We are entitled to measure the amount of the expense compensation according to the costs actually occurred or, in lieu of this, to request a lump sum of 10% of the order total. The Customer shall bear the expenses related to the return of the merchandise.

 

III. Prices and Terms and Conditions of Payment

1. The prices we have offered are binding and are shown, unless otherwise agreed in writing, ex works or shipping warehouse. Packaging, freight and insurance of the merchandise will be billed separately on a time and material basis. Our prices are shown excluding statutory value-added tax. This item will be shown separately on the invoice in the amount applicable on the day of delivery. In the event of deliveries within the European Union, the Customer shall submit his VAT ID number in good time before the delivery date stipulated by the contract as verification of his right to a tax exemption. If he fails to submit the number, we reserve the right to bill the applicable VAT. In the event of deliveries outside of the European Union, we are entitled to subsequently invoice the statutory value-added tax if and when the Customer does not submit an export certificate pursuant to Sections 8 and following UStDV (Implementing Regulations for VAT) within one month after delivery of the merchandise.

2. If and when a period greater than four months elapses between the conclusion of the contract and the agreed delivery date, we reserve the right to adjust prices in accordance with any relevant rise in relevant material and labour expenses. A price adjustment before the expiration of the above-mentioned period is permissible if the Customer maintains a contractual recurring obligation with us.

3. Unless otherwise agreed, Customer's payments shall be effected within 10 days after receipt of the invoice. The Customer shall be deemed in default of payment without any specific dunning notice upon the expiration of the above period.

4. We are under no obligation to accept bills of exchange and cheques. The agreed acceptance of bills of exchange and cheques will be accepted only as payment, i.e., the debt shall not be deemed amortised until they have been redeemed. Discount charges and any and all costs incurred with respect to the redemption of the bill of exchange or cheque shall be borne by the Customer.

5. The Customer is prohibited from offsets unless his counterclaims have been expressly declared as undisputed or have been finally determined by a court of law; this provision applies as well to Customer's rights to refuse performance or retention rights.

6. In the event of default of payment, we are entitled to charge interest in the amount of 8% above the current basic rate of the European Central Bank and, upon submission of verification of a higher rate for the interest which we must pay to our bank, in the amount of this interest rate.

7. All of our claims, regardless of the term of any bills of exchange and cheques which have been accepted and credited to our accounts, shall become due and payable immediately if and when a payment deadline passes fruitlessly or if and when the Customer is in breach of any other contractual agreements or if and when we become aware of circumstances which may reduce the Customer's creditworthiness. Moreover, we are in this case entitled to perform any outstanding deliveries solely against advance payment or security and, after setting a reasonable subsequent period, to cancel the contract and/or to request damage compensation owing to breach of obligation. Furthermore, we may prohibit the further sale of the merchandise delivered subject to retention of title, to request its return or the conveyance of indirect possession at the Customer's expenses and to revoke any collection authorisation.

 

IV. Retention of Title

1. We retain title of ownership to any and all delivered merchandise until any and all of our claims from the business relationship have been settled in full (reserved goods), in particular the current balance claims from current accounts, even if and when payments have been effected for specifically designated claims.

2. The Customer is obligated to handle the merchandise carefully and properly. If and when maintenance and inspection work is required, the Customer shall perform the work regularly at his expense.

3. The Customer undertakes to sell the reserved goods only in the course of ordinary business, subject to his regular terms and conditions of business and provided that he is not in default. He is entitled to sell further the reserved goods solely subject to the condition that the claim from the further sale is assigned to us pursuant to Clauses 4 - 6 below. He is not authorised to dispose of the reserved goods in any other way.

4. The Customer hereby assigns to us, here and now, his claims arising from the further sale of the reserved goods, regardless of whether the reserved goods are sold to one or several customers.

5. The Customer is authorised to collect the assigned claims from the further sales unless we have revoked the authorisation; the revocation is possible at any time. We will exercise our revocation right solely in the cases covered by Clause III. 7. If and when our claims are due and payable, the Customer is obligated to forward the collected amounts to us without delay. The Customer is not entitled to pledge the claims under any conditions.

6. Upon our request, the Customer is obligated - unless we notify his customers ourselves - to notify his customers immediately of the assignment to us and to submit to us verification of the notification and to send to us any and all information and documentation required for the collection of the assigned claim together with this notification.

7. Upon the Customer's request, we are obligated to release securities to the extent that the realisable value of the securities exceeds the amount of our claim by more than 20%. We reserve the right to choose the securities which will be released.

8. If and when the reserved goods are processed or mixed with merchandise which does not belong to us, we acquire co-ownership in the new item in the ratio of the value of the reserved goods to that of the other processed items.

9. The Customer is obligated to notify us immediately of any attachment or other seizure of the reserved goods by third parties. If and when the Customer fails to meet payment deadlines or is in breach of other contractual agreements, or if and when we become aware of circumstances which may reduce the Customer's creditworthiness, we are entitled to prohibit the further sale of the goods, to request their return or the granting of indirect possession at the Customer's expense, to revoke the collection authorisation and/or to request payment of the amounts collected by the Customer or, in the event that the merchandise has already been sold, but has not yet been paid for, in whole or in part, to request payment directly from the Customer's customers.

10. We are entitled to request surrender of any objects to which we have title if and when we become aware of circumstances which indicate that the satisfaction of our claims by the Customer is in jeopardy. A right of retention contrary to this claim for surrender may be exercised solely within the framework of the regulations described above in Clause II. 5. The Customer hereby declares his agreement that the persons we have engaged to pick up the goods may enter the premises on which the merchandise is located for this purpose.

 

V. Delivery Dates and Periods

1. The commencement of the delivery period we have designated presupposes the clarification of any and all technical questions.

2. Our compliance with the delivery obligation presupposes as well the due time and proper fulfilment of the Customer's obligation. We reserve the right to plead the defence of non-fulfilment of the contract.

3. If and when the Customer is in default of acceptance, or if and when he is in culpable breach of other cooperation obligations, we are entitled to request compensation for any damage or loss we have suffered, including any additional expenses. The above provision is without prejudice for more extensive claims.

4. If and when the conditions of Clause VI (3) have occurred, the risk of accidental loss or accidental worsening of the merchandise shall transfer to the Customer simultaneously with his default of acceptance or his debtor's default.

5. We are liable pursuant to statutory legal provisions if and when the relevant purchase price is a fixed date transaction within the meaning of Section 286 (2) Item 4 BGB or of Section 376 HGB (German Commercial Code). We are also liable pursuant to statutory legal provisions if and when the Customer, as a consequence of default of delivery for which we are accountable, is entitled to assert that his interest in the further fulfilment of the contract has lapsed.

6. We are liable pursuant to statutory legal provision if and when the default of delivery is a consequence of wilful or grossly negligent breach of contract for which we are accountable; any culpability of our representatives or vicarious agents shall be attributed to us. If and when the default of delivery is not the consequence of a wilful breach of contract for which we are accountable, our liability for damage compensation shall be limited to the foreseeable loss or damage typical of the circumstances.

7. We are also liable pursuant to statutory legal provision if and when the default of delivery for which we are accountable is the consequence of the breach of a cardinal contractual obligation; in this case, however, the liability for damage compensation shall be limited to the foreseeable loss or damage typical of the circumstances.

8. In other respects, we are liable in the event of default of performance within the framework of a lump-sum compensation for default of 3% of the value of the delivery for each and every full week of default; however, compensation shall not in the aggregate exceed 15% of the value of the delivery.

9. The above provisions are without prejudice for other statutory claims and rights of the Customer.

 

VI. Packaging

1. We select the packaging at our discretion according to its suitability. We will observe special requests by the Customer whenever possible, but no special obligations in this respect are established.

2. Deductions from the invoices for the disposal of packaging materials, in particular of transport packaging, are prohibited.

 

VII. Shipping and Acceptance

1. When shipping the merchandise, we may select the means of transport and the shipping method, excluding any and all liability. The above exclusion does not apply if and when one of our executive employees is culpable of no less than gross negligence in making the selection.

2. Unless otherwise agreed, partial deliveries are permissible and shall be deemed independent deliveries with respect to payment and complaint.

3. Merchandise which has been reported as ready for shipment must be called immediately; otherwise, we are entitled to store it at our discretion at the Customer's cost and risk and to invoice it as delivered. We may charge storage costs either according to their actual amount or in the amount of 1% of the invoice amount for each and every month or part thereof.

4. In the event of shipped purchases, the risk of accidental loss or accidental worsening of the merchandise transfers to the Customer upon its being handed over to the shipping agent or the freight carrier, but no later than upon the merchandise leaving the plant or the warehouse.

5. Customer's default of acceptance shall be deemed the equivalent of the handover of the merchandise to the freight carrier.

6. We are obligated to conclude a transport insurance policy solely upon the Customer's express written request. The Customer shall bear the costs.

7. The forwarding agent or rather the customer that authorized the forwarding agent is responsible for a suitable load securing conformable to the German StVO

 

VIII. Warranty and Liability

1. In the event of defects in the merchandise, we will initially fulfil our warranty obligations by means of either subsequent improvement or substitute delivery, at our discretion.

2. In the event of failure of subsequent performance, the Customer may, at his discretion, request reduction of the compensation or rescission of the contract. However, the Customer shall not be entitled to any rights of rescission in the event of only minor breach of contract, especially in the event of only minor defects.

3. The Customer must notify us in writing of any obvious defects within a period of 7 days as of receipt of the merchandise; otherwise, the assertion of the warranty claim is excluded. The due time dispatch of the notification shall be deemed compliance with the period. The businessman bears the full burden of proof for any and all conditions required for the assertion of claims, in particular for the defect itself, for the point in time at which the defect was determined and for the due time submission of the complaint of defects.

4. If and when the Customer decides to rescind the contract owing to a legal or material defect after the failure of subsequent performance, he shall not be entitled to any further damage compensation claims related to the defect.

5. It is agreed that solely the manufacturer's description of the product shall be deemed characteristics of the merchandise. Manufacturer's public statements, claims or advertising shall not be deemed information regarding contractually agreed characteristics of the merchandise.

6. If and when the Customer receives defective operating instructions, we are obligated solely to provide a defect-free set of instructions for assembly; this provision applies solely if and when the defect in the operating instructions prevents proper use.

7. The Customer does not receive any warranties in a legal sense from us. The above provision is without prejudice for manufacturer's warranties.

8. We are liable pursuant to statutory legal provision if and when the Customer asserts damage compensation claims which are based on wilfulness or gross negligence, including wilfulness or gross negligence on the part of our representatives or vicarious agents. Provided that we are not culpable of wilful breach of contract, the damage compensation liability is limited to the foreseeable loss or damage typical of the circumstances.

9. We are liable pursuant to statutory legal provisions if and when we are in culpable breach of a cardinal contractual obligation; in this case, however, the damage compensation liability is limited to the foreseeable loss or damage typical of the circumstances.

10. The above provisions are without prejudice for liability due to the culpable injury to life, body or health; this also applies to mandatory liability pursuant to the German Product Liability Act.

11. In the absence of deviating provisions above, any liability is excluded.

12. Customer's warranty and damage compensation claims owing to defects are subject to a limitation period of one year after delivery of the merchandise.

13. Warranty claims against the seller may be asserted solely by the immediate seller and are not assignable.

14. We recommend that products are stored in a dry, dust-free, frost-free storage room with an ambient temperature below 30 ° C. The effects of harmful influences such as moisture or direct sunlight must be avoided. Teats made from latex or silicone may be contaminated if they are stored together with rubber or plastic which contains Nitrosamines, PAHs, Phthalates etc. Exhaust fumes of engines can also cause contaminations. Such contaminations have to be avoided. If the storage conditions are obeyed products containing latex and water filled products can be stored 2 years, all other products can be stored 5 years.

 

IX. Intellectual Property Rights

1. Orders carried out in accordance with drawings, sketches or other information provided to us by the Customer will be executed at his risk with regard to copyright, registered design or trademark laws. If and when the execution of such orders results in infringements on third-party intellectual property rights, the Customer shall indemnify and hold us harmless from and against any losses or damage resulting from the infringement.2.

We reserve title of ownership and copyrights to any and all information and documents we have provided (e.g. samples, cost estimates, drawings, documentation), including any such information in electronic form. They may not be disclosed to third parties without our prior written consent.X. AssignmentThe assignment of the Customer's rights pursuant to this contract with us without our express consent is prohibited, unless the relevant claims are money claims.

 

XI. Final Provisions

1. Place of performance for both Parties is our company domicile in Georgensgmünd.

2. Any and all disputes arising from the business relationship with the Customer shall be subject to the sole and exclusive jurisdiction of courts at our company domicile in Georgensgmünd. The contract is governed by the laws of Germany. The application of the United Nations Convention on the International Sale of Goods (CISG) is excluded.

3. The Customer shall bear any and all taxes, fees and other levies on consignments to countries outside of Germany and shall, as necessary, reimburse us for such costs.

4. In the case of exports of our goods by our customers to areas outside of Germany, we do not accept any liability in the event that our products infringe on third-party intellectual property rights. The Customer is obligated to compensate us for any damage or loss we suffer from the exports of goods which we have not expressly delivered for export purposes.

5. If and when these provisions are legally invalid in part or if and when there are omissions, the validity of the remaining provisions will not be affected. An invalid provision shall be replaced by a valid provision coming closest in commercial intent to the invalid provision.

Date: April 2016