General Terms of Business – Wholesale – of the ORION Versand GmbH & Co. KG
Applicability
Our wholesale business conditions shall apply exclusively to all business transactions with our customers; diverging customer`s terms of business will not be accepted except after prior written agreement. Our wholesale business terms shall also apply exclusively in case we carry out the customer’s orders being informed about his diverging terms of business. These terms of business contain the full and complete understanding between the parties. Our terms of business shall apply only to enterprises according to the BGB. Our terms of business shall also apply to all future transactions with our customers.
Offer
In case the customer`s order qualifies as an offer in the meaning of § 145 BGB, we are free to accept this offer within 2 weeks by carrying out the order or by returning a written acknowledgement of the order.
Prices, Payment
As far as no single agreements are made, our prices refer to our storage place in Flensburg, Germany, package included. In general, the customer bears the costs of transport. VAT is not included and is indicated separately on the invoice; percentage as set by law. Cash discount will only be accepted after prior written agreement. In general the payment is due immediately and has to be effected by cash on delivery or direct debiting. The setting off of a claim is only possible with a claim which has become res judicata, is uncontested or accepted by ORION. The customer is only entitled to enforce a lien as far as his claim is based on the same contractual relation. Our prices are the current sales prices. Our prices are subject to change, errors and misprints expected. We reserve the right to adjust our prices adequately after conclusion of the contract, in case of cost increases or cost decreases, particularly due to increase in pay rates or increase of the material price. If recommended by the customer, we will substantiate the basis for the modifications.
Delivery, Delivery time
To meet our delivery commitment, we require our customers to fulfill their contractual obligations. The defence of lack of performance of the contract remains reserved. In case the customer fails to take delivery when tendered by ORION or neglects other duties, ORION is entitled to claim the resulting damage and additional expenditures. Further claims remain reserved. The risk of accidental loss, destruction or deterioration passes to the customer if the preconditions of the default of acceptance are given. ORION is liable according to the legal provisions as far as we are responsible for the intentional or grossly negligent violation of our contractual obligations. The claim is limited to the typical and foreseeable damage.
Liability for defects
Precondition for a claim of the customer based on defects is that the customer fulfilled his duty to examine and to make a complaint in respect of a defect of the delivered goods immediately. In case the delivered goods are defective, ORION is free to remedy the defects or deliver subsequently faultless goods. Does ORION fail to remedy the defects, the customer can withdraw from the contract or claim the reduction of the purchase price. ORION is liable according to the legal provisions as far as we or the persons employed in the performance of our obligation are responsible for the intentional or grossly negligent violation. The claim is limited to the typical and foreseeable damage. The liability for culpable injury of life, body or health as well as the peremtory product liability remain unaffected. With exception of the provisions above, ORION’s liability is excluded. Claims of the customer based on defects of the goods delivered are subjected to a limitation period of 12 months from the passing of the risk to the customer.
Liability
With exception of the provisions mentionned under „Liability for defects“ all other claims for liability are excluded without regard to the legal nature of the claim. This exclusion applies also to claims for reimbursement of expenses. All limitations on liability apply also to our staff or the persons employed in the performance of our obligation.
Reservation of Title
All goods delivered remain our property until full payment of all our claims is effected. In case the customer behaves contrary to the terms of the agreement, particularly in case of default, we are entitled to take back the goods and by this withdraw from the contract. We are entitled to make use of the goods in any economic way of exploitation. The proceeds from the sale will be credited against the customer`s liabilities. The customer bears the costs. The customer is required to treat the goods with care and has to arrange an adequate insurance. The customer is obliged to inform us about any seizures or other measures by third parties which might affect our property. The customer is entitled to sell the goods in his way of business. Up to the sum of the invoice he owes to ORION, he assigns all claims against his customers which result from the sale of the delivered goods to ORION. In spite of the assignment the customer is entitled to recover the debt. Nevertheless we are also entitled to recover the debt, but will refrain from doing so as long as the customer fulfills his financial obligations towards ORION. In case of an imminent danger of insolvency proceedings, the customer informs us as soon as possible and gives us all required information about his clients and the assigned claims. ORION covenants to return the assigned provisions of security on customer`s request in case they exceed our claims for more than 10 %; the choice which provisions of security will be released is made by ORION.
Protection of Children and Young People
The customer acknowledges being informed by ORION that the articles availlable are subjected to legal or administrative selling restrictions and shall not be made accessible to children or young people. The customer represents, warrants and covenants to ORION that he will comply with all applicable laws, legal requirements and selling restrictions regarding the protection of children and young people. The customer agrees to indemnify, defend and hold ORION harmless from any and all claims and damages, costs and expenses (including reasonable attorney`s fees) which are brought forward against ORION by third parties for reasons of and in respect of the distribution, marketing, sale or any other form of presentation and publication of the goods by the customer to his clients.
Venue
Exclusive venue for any disputes between ORION and the customer is Flensburg, Germany. Nevertheless ORION is entitled to sue the customer at his forum domicilii. The law of the Federal Republic of Germany shall apply exclusively to the exclusion of the United Nations Convention on Contracts for International Sale or Goods. Our place of business is place of performance.
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