General terms and conditions for sale and delivery of InterPro Brands GmbH & Co.KG

Important note: This English version of the valid German general terms and conditions for sale and delivery serves for our business partner’s convenience. The German edition is the only decisive version – only the terms and conditions in German remain obliging.

I. General provisions
§ 1 Scope of application
(1) These general terms and conditions for sale and delivery of InterPro Brands GmbH & Co.KG (further referred to as: “IPB”) are applicable for recently and future business only to entrepreneurs (further referred to as: “contractual partner”). Contractual partners in this respect are natural or legal entities or joint partnerships/societies exercising their commercial or independent professional activity.
The bold – typed emphasises serve only for better orientation of the readers and have no subject matter meaning.

(2) These terms are a substantial part of all offers and acceptances of contracts by IPB. They are the exclusive contract regulations with each contractual partner, as long as there are no specific individual rules agreed upon in contracts.

(3) Different, conflicting or supplementary terms and conditions become, even with knowledge, not contract component, unless IPB has approved the application of these contractual partner’s terms explicitly and in writing.
(4) With the exception of the Managing Directors, authorised signatory and authorised trade representatives, the staff members of IPB are not entitled to enter into agreements deviating from the present terms.

§ 2 Offers and Conclusion of Contracts

(1) IPB’s offers are nonbinding.

(2) With ordering goods the contractual partner declares obligingly that he wants to acquire the ordered goods. The contract offer lying in the order is accepted only by confirmation in writing. We reserve the right – due to the dependence on external suppliers and subcontractors – to use a four weeks acceptance period. Additional agreements are only effective if they are confirmed in writing. With a contract closed by electronic business dealings we exclude the application of §312 e of the German Civil Code. The contract closing occurs under the condition that we receive correct and in time supply through our suppliers. This only applies in the event that we are not responsible for the non-delivery, especially in case of a congruent hedging transaction with our supplier. If this occurs we will immediately inform our contractual partner about the non-availability and refund a payment.

(3) IPB reserves all rights, in particular the property right and the copyright for offers, drawings, sketches, plans or other technical documents which are handed over to the contractual partner before or after a contract. Without IBP’s approval the contractual partner may not use them, copy, reproduce, transfer, hand over to third parties or announce them any other way. On request they must immediately be returned to IPB.

(4) Provided that special regulations were agreed for one order, they end with the termination of the order and will neither apply to different contracts at the same time or future contracts.

§ 3 Prices

(1) Unless otherwise specified, IPB’s prices are expressly in EURO plus the legally prescribed value added tax (VAT). By IPB provided Brochures, price-lists and other advertising materials are valid in the newest version until a new edition will be issued, exceptions are only advertising efforts which are limited in time.

(2) All prices quoted by IPB are unpacked ex works. Costs for packaging, loading, duties and deliveries, carriage, consular fees and insurance (in particular transport insurance) or other costs on the basis of destination country’s regulations to upraised deliveries / fees are not included in this.

(3) If applicable IPB reserves the right to correct prices after contract conclusion on the basis of currency fluctuations, elevation of additional duties, increasing raw material prices or risen import-sea cargoes.

II. Contracting parties’ obligations

§ 4 Export and import permits

(1) Goods supplied by IPB and technical know-how are meant to remain and be used in Germany. The re-export of the contractual goods – individually or in an integrated form – are always subject to the Foreign Trade Regulations of the Federal Republic of Germany. For the delivery of goods, which are subject to a resale price fixing and/or a distribution restriction, the specific terms and regulations for export (for e.g. embargo) of the referred manufacturer shall apply in addition to these terms of delivery

(2) The contractual partner is obliged to autonomously gather information about the corresponding regulations and namely for the German terms by the Federal Office for Export, 65760 Eschborn/Taunus.

(3) Irrespective of whether the contractual partner indicates the final destination of the delivered goods, it is his own responsibility to obtain, if necessary, the permission granted by the respective Foreign Trade Authority, prior to export. The contractual partner is solely responsible for compliance with the applicable regulations up to the end-user.

§ 5 Payment conditions and retention of title

(1) Payment of our claims shall be executed no later than the last day of the agreed payment period in full and exempt from charges to the account of IPB; charging, deductions or discount are excluded if the contractual partner does not have at the time of payment a credit note or otherwise written consent of IPB

(2) Payment shall be made either within 10 days with 2 % early payment discount or within 30 days after the invoice date without deduction. The contractual partner forfeits on exceeding the agreed payment period all and any claims based on discounts granted, special and net prices.

(3) In case no contract has been concluded with the contractual partner in the past (initial business), payment in advance minus 2 % cash discount shall apply. Otherwise agreed payment conditions must be confirmed in writing by IPB.

(4) IPB must be notified in writing of any objections regarding prices, invoices, credit notes or other written agreements within 8 days.

(5) The contractual partner owes IPB, without any reminder concerning the outstanding amounts being required. If payment is delayed IPB shall be entitled to charge default interest in the amount of 8% above the basic interest rate. We reserve the right to prove and claim greater damage caused by delay.

(6) Failure by contractual partner after expiry of a reasonable period of grace to pay the outstanding amount plus interest will result in his obligation to compensate IPB all legal and extra-legal costs, including the costs of legal advice

(7) The goods remain property of the IPB until the complete payment and may not be pledged to third parties nor be transferred by way of security. The contractual partner is entitled to resell the delivery in the ordinary course of business; however, he herewith already assigns to us all claims to the amount of the invoice sum total accruing to him from the resale against third parties. IPB accepts the assignment. The contractual partner will be entitled to collect these accounts receivable also after their assignment; we reserve the right to collect the claim ourselves if the contractual partner fails duly to meet his payment obligations and is in default.

(8) In cases where IPB issues an invoice to a person other than to the contractual partner that shall not be considered as an alteration of the contractual partner and in particular not a discharge of the contractual partner from its obligation for payment. If the invoice is sent to a third party by IPB, this should only be deemed an acknowledgement of his sharing the debt but not as an assumption of the contract.

(9) The contractual partner will be charged with € 5 for each reminder for payment after the due date. This fee does not affect the legal rights of IPB by law.

(10) In case of a delay in payment or of protest of the cheque or of the bill of exchange or in case of other circumstances, which entitle IPB to demand a cash advance or provision of security, IPB may terminate any agreement for extension and granted period of payment with the contractual partner regarding the entire business relation between IPB and the contractual partner.

§ 6 Assignment, Setoff, Retention

(1) The contractual partner shall only have the rights of set-off and retention if his counterclaim have already been ascertained by a court, are undisputed or have been accepted by IPB. This also applies to the plea of non-performance of the contract pursuant to § 320 of the German Civil Code.

(2) The contractual partner is not entitled to assign claims from the contract to third parties without the written approval of IPB.

§ 7 Delivery times and dates

(1) Delivery times are to be considered as approximate and subject to confirmation and will be fulfilled as possible. IPB will perform delivery as soon as possible, but period of delivery is generally not binding. In principle, mentioned periods and deadlines shall not be binding unless IPB confirms explicitly and in writing the appointed period/date is binding. The time of the dispatch ex works or ex stock, or the notification for the readiness for dispatch, shall be authoritative for the determination of the adherence with the period of delivery in case the goods are not dispatched in due time without IPB’s fault. The period of delivery shall be prolonged to another individually agreed term, if the contractual partner does not perform the owed cooperation for delivery.

(2) The delivery dates given by IPB for delivery of goods respective Service will depend on IPB’s circumstances and in the event of dependence on third party performance are based on the provided information.

(3) IPB cannot influence any delay of the delivery/performance resulting from a force majeure, when these circumstances appear in the sphere of IPB the period of delivery is prolonged for the duration of the obstacle including a reasonable initial period. IPB shall only be in delay with its obligation to deliver and to perform, when the contractual partner sends a reminder to IPB indicating a reasonable period of grace and when the period has unsuccessfully expired and the further legal preconditions have been met.

(4) IPB is entitled to partial delivery.

(5) During the contractual partner’s review of colours, samples, proofs, samples subject to change, catalogues or similar, the delivery time is interrupted for the period from shipping-out date until the final written approval. The delivery time will also be prolonged by each amendment of the existing contract required by the contractual partner.

(6) In case that the supply according to the request of the contractual partner is delayed or as a result of a contractual partner’s failure to perform a required cooperative act (for e.g. delivery of additional devices, accessories or modifications), or the contractual partner does not accept the delivered good, or the delivery is not performed because the contractual partner fails to perform its obligation for payment, then IPB is entitled to demand for a compensation for the additional expenses which occur and in particular the expenses for storage. The expenses for storage can be charged from the beginning of one week after the notification of the readiness to dispatch with 1 % lump sum of the invoiced sum for every month. The contractual partner is entitled to prove that IPB incurred no or significantly lower storage costs. IPB reserves the right to prove higher expenses. Except that, IPB’s right to withdraw from the contract or to claim compensation due to legal regulations shall not be affected.

§ 8 Duties and Obligations of the contractual partner to Cooperate

(1) In case the effectiveness of the contract or the performance of the contract requires specific permissions or licences (for e.g. licences for import or export) or similar, they are to be obtained by the contractual partner, unless the parties agreed explicitly something else.

(2) The contractual partner is furthermore obliged to cooperate timely in accordance with the contract and in good faith, in particular to obtain the required permissions and to provide additional devices, accessories or modifications.

(3) IPB is entitled to fix a reasonable time period to the contractual partner for the performance of the act of cooperation (for e.g. the request for a necessary permission). After the unsuccessful expiry of the period IPB is entitled to withdraw from the contract. When the required licences or permissions are not provided before the expiry of three (3) months after the conclusion of the contract IPB is entitled without further preconditions to withdraw from the contract.

§ 9 Passage of the Risk

(1) IPB’s deliveries are made ex works, on the ground floor at only one place, which means the place where IPB performs delivery. Goods are considered to have been delivered in the following cases:
a) If delivery will be executed by carrier, with transfer to the first shipper or freighter (acceptance of the goods) against receipt
b) If the goods are collected by the contractual partner or on behalf of the contractual partner with handing over against receipt
c) If IPB uses own vehicles for dispatch, with the delivery to the contractual partner against receipt.
The risk passes to the contractual partner when the goods are delivered

(2) The contractual partner carries the transport risk, should insure himself if necessary, even if the IPB commissions the transport.

(3) An insurance of the goods, for e.g. against theft, break, transport, fire or water damages or similar risks, will be provided by IPB only upon explicit request of the contractual partner and shall always be at the expense of the contractual partner.

III. Incoming goods control, withdrawal, right to claim for defects and indemnity

§ 10 Goods receipt inspection

(1) The contractual partner is obliged to examine the goods carefully immediately after delivery or to retain third party to do so. Complaints for non-compliance or apparent defect of the goods, which are resulting from material defects or faults in production process, as well as deviations between the delivered goods and the information given in this regard on the order confirmation or invoice concerning quantity of covering boxes or goods, weight, composition or quality shall be notified in writing to IPB without undue delay, at the latest within eight (8) days after receipt of the delivery.

(2) Any hidden lacks of conformity, which cannot be submitted justifiably within the above-mentioned period, have to be noticed in writing to IPB after discovery but at the latest within 30 days after the receipt of the goods.

(3) The contractual partner is not entitled, without the prior written consent of IPB to return the goods. All costs involved are at the expense of the contractual partner, and also shall bear all risk until arrival at IPB. If goods should arrive in a damaged or defective condition which is visible on the outside caused by a carrier mandated by IPB or the contractual partner, must be reported to the carrier in writing on the receipt of the carrier by the contractual partner himself or by a third party assigned by him, otherwise claims cannot be accepted by IPB.

§ 11 Detection of defects, claims for defects

(1) IPB guarantees that the delivered goods do not contain any major defects at the time the risk is transferred.

(2) Details of the subject matter of the delivery, the appearance, capacity, measurement and weight of the goods, etc. that were made at the conclusion of the contract in valid descriptions of the goods represent no guarantee, but a description of the goods, which are only to be regarded as approximate. A guarantee is only given when IPB has appointed it explicitly and in writing as such.

(3) When after the conclusion of the contract alterations are carried out on any of the goods concerning construction, material, and model, these alterations do not represent a defect of the purchased goods, as long as no deduction of the value occurs from that. Should the alterations not have been taken into account in the goods, the contractual partner has no right to claim that such alterations are to be made.

(4) IPB is not liable for public statements of third parties (including the suppliers of IPB or the manufacturer) when IPB did not know about these statements or was not obliged to know. IPB is not liable for public statements through IPB or third parties when the statement at the moment of the conclusion of the contract was already corrected or when the contractual partner could not prove that the respective statement has influenced its decision to purchase.

(5) The guarantee for defects and damages is excluded when they arise
a) because a certain construction or a certain material for the purchased good was chosen under the instruction of the contractual partner,

b) because the contractual partner has installed the purchased good or put it in operation incorrectly,
c) because the contractual partner operates the purchased good incorrectly or he does not use appropriate operating instruments,
d) because the contractual partner has not considered user manual or the rules for maintenance,
e) because the contractual partner does not use the purchased good competently or has overstrained the good,
f) because the contractual partner has attached external parts or components (products by other manufacturers), although they were not permitted in the user manual or by a written explanation by IPB,
g) because the contractual partner has decomposed or changed the purchased good without the prior approval of IPB
h) because the contractual partner has installed incorrectly the purchased good into another item (even if the installation into the other item might be allowed).

(6) A notice of a lack of conformity does not abolish the duties of the contractual partner for acceptance and payment of the goods, unless the defectiveness of the goods is not controversial or has already become res judicata.

(7) If there is a lack of conformity in the purchased goods, IPB is entitled to its own choice to remove the defects, by means of for example extra work/improvement of the goods, or replacement of the complained parts or to deliver another good without defects. If one of these forms of subsequent improvement is connected with considerable disadvantages for the contractual partner, the contractual partner is entitled to request another type of subsequent improvement.

(8) IPB bears the necessary expenses in case of remedying a defect, the repairing of the good, respectively the substitute delivery, in particular the wage, material and freight expenses. Exchanged old parts of the goods become property of IPB.

(9) In cases of the settlement of claims with a foreign contractual partner, IPB shall not generally bear custom duties and similar specific expenses, which are connected with the place of usage, respectively the exporting country of the purchased goods.

(10) Should no subsequent performance be attempted within an appropriate deadline set by the contractual partner, which must be a minimum of two weeks, or should the setting of a deadline in compliance with the law be unnecessary in exceptional circumstances, the contractual partner is entitled to turn to other statutory defect claims, in particular a reduction in the purchase price or withdrawal from the contract. Where a subsequent performance attempted within the deadline does not rectify the defect, the contractual partner may turn to the other statutory claims once a second appropriate deadline has lapsed without effect, unless in exceptional circumstances it is not reasonable to expect the contractual partner to wait a second time. In the case of partial performance, the contractual partner may only withdraw from the entire contract when he can provide evidence that he has no interest in such a partial performance and that the breach of duty is serious. Claims for damages arising from defects are possible only under the conditions outlined in § 13.

(11) Should an inspection of the goods for which a complaint was made reveal that there is no defect, IPB is entitled to invoice the contractual partner for the expenses incurred in the inspection in line with IPB’s prevailing hourly rates.

(12) The statutory period of limitation for defect claims is one year after delivery.

(13) The contractual partner’s recourse rights remain unaffected in accordance with § 478 of the German Civil Code.

§ 12 Withdrawal

(1) The statutory legal regulations apply to the right of the contractual partner to withdraw from the contract, provided that in cases where the contractual partner claims a breach of the contract, which are not claims of defect of the goods, the contractual partner has a right to withdraw from the contract only when IPB is responsible for the breach of contract.

(2) IPB is entitled in case of withdrawal to calculate a monthly lump sum of 3 % of the purchase price for the realized profits from the use, as far as the contractual partner does not prove a smaller value of the emerged profits. The right of IPB to prove a higher value of the emerged profits shall be unaffected.

§ 13 Limitation of liability; duty of IPB to compensate the damages

(1) In case of slight negligence of any obligations of the contract our liability is limited to average damages which are foreseeable, typical for contract. This shall also apply to slightly negligent breaches of obligations on the part of our legal representatives or assistants. In other cases the claims for compensation of the damages are excluded.

(2) Furthermore, the liability limitations shall not apply in cases of physical injury or harm to health or loss of life of the contractual partner, attributable to us.
(3) All claims to compensation for damage of the contractual partner due to a defect expire after 1 year subsequent to delivery. This does not apply if we are to be accused of gross negligence or if we have caused bodily injury, damage to health, or loss of life of the contractual partner.

(4) The contractual partner is obliged to give notice immediately and in writing to IPB of the damages for which it wants to make IPB liable, and if necessary to allow an inspection of the damages.

§ 14 Duty of the contractual partner to compensate the damages

As for IPB’s entitlement to request from the contractual partner compensation for damages instead of performance, IPB is entitled to request a lump sum for compensation for damages in the amount of 10 % of the purchase price, as long as the contractual partner does not prove smaller damages. IPB reserves the right to claim for higher damages according to the statutory provisions of law.

V. Miscellaneous

§ 15 Intellectual Property rights and Copyrights of Third Parties

(1) In cases where the delivered goods were manufactured in accordance with the drafts or designation of the contractual partner, the contractual partner has to indemnify IPB against all claims, arising from the breach of intellectual property rights and/or copyrights which are exploited by third parties.

(2) IPB is only liable for a breach of a patent, when the conflicting patent right is granted in Germany, but limited to support the contractual partner in and out of court and in judicial proceedings against the patent holder, to compensate the contractual partner for the expenses for proceedings, and to indemnify the contractual partner against the final judgement for compensation for damages to the patent holder. IPB’s liability for patent infringements abroad is excluded.

§ 16 Control obligations by contractual partners

(1) The contractual partner is obliged to check samples, proofs, samples subject to change and catalogue-proofs – which the contractual partner received from IPB upon request – carefully for faults and/or defects and to return these quickly corrected or approved to IPB.

(2) Approval of the proofs by the partner constitutes acknowledgement of the fact that IPB has carried out the activities preceding the proofs correctly and in due time. IPB is not liable for discrepancies, faults and defects that have remained unnoticed in the proofs that have been corrected / approved.

(3) Each proof produced on contractual partner’s explicitly request by IPB will be charged in addition to the agreed price, unless it has expressly been agreed that the costs of these proofs are included in the price. IPB supplies samples and test units only against payment, returns are generally excluded / IPB does not take them back.

(4) IPB’s published catalogue illustrations are not color binding. IPB delivers all goods without content, unless it is explicitly stated in the description. All electronics will be supplied with batteries, unless otherwise stated in the detailed description.
The batteries are either enclosed in the packaging of the item or inserted but with a separating strip in the battery compartment.

(5) Descriptions, print areas, print codes and other information stated in IPB’s brochures, catalogues, information sheets and other descriptions only serve as rough approximations.

§ 17 Purchase contract with advertising placement

(1) IPB shall all goods, which are ordered by the contractual partner including advertising placement and originally have been packed individually in e.g. polybag, film, bubble-foil, Paper, wrapping tissue and/or polystyrene additionally, repack directly into the provided individual packages (gift boxes, cases and similar). In case the contractual partner expressly points out in his order that he desires packing individually in e.g. polybag, film, bubble-foil, Paper, wrapping tissue and/or polystyrene additionally, IPB will perform as desired at an extra charge. This needs to be specified precisely when the order is placed.

(2) The contractual partner provisions (sieves, stereotypes, films, stamps or data carriers will be used by IPB without checking and are regarded as approved according to §16. These tools have to be sent back after use for this contract. In case the contractual partner wants to have them archived for subsequent orders, this needs to be specified separately with order placement. It is IPB’s obligation to keep tools and attachments for 2 years following the last use; after this period IPB shall be entitled to destroy the archived originals without prior notice to the contractual partner.

(3) Through placing the order the contractual partner shall not acquire ownership on the printing-tools. After termination of the respective contract IPB will delete and reject the aforementioned tools.

(4) In case of contracts including advertising placement IPB reserves its right of an increase or shortage of maximal 10 % of the ordered quantity.

(5) On placing the order, the contractual partner declares and confirms to IPB that he owns all necessary rights for use and reproduction of the material made available. The contractual partner assigns this right on placing the order to IPB.

§ 18 Final regulations

(1) All rights (in particular third parties’ property right and copyright) are reserved. Reproduction, transfer, distribution, or storage (computer-aided data file) of part or all of the contents of this document, electronic, mechanical, as a photocopy or as a picture or in any form without the prior written permission of IPB is prohibited.

(2) The laws of the Federal Republic of Germany shall apply with the exception of the UN Law on International Sales. Place of fulfilment and jurisdiction for all disputes arising from the legal relationship between us and our contractual partners is Bremen. The same applies if the contractual partner does not have a general place of jurisdiction in Germany or domicile or habitual residence is not known at the time of filing the claim.

(3) Purchase contract changes, contract amendments, supplements and any subsidiary agreements among the parties involved must be in writing in order to be valid. This also applies in particular for cancellation or modification of this written form provision.
If the written form is required, transmission by fax is sufficient. Electronic data transmission (e-mail) is only sufficient if it is provided with a qualified digital signature in accordance with the German Digital Signature Act.

(4) IPB is entitled to record and to process personal data of the contractual partner by means of electronic data processing.

(5) Should a provision of these agreements or of the contract with our contractual partners be or become wholly or partially ineffective, this shall not affect the validity of the remaining provisions. In place of the legally ineffective part, it is agreed that what the contracting parties wished to reconcile in an economically permissible manner comes closest to what was legally acceptable. The same applies in the in the case of an omission in these conditions or our contractual agreements.

As of December 2017