General Terms and Conditions of Sale, Delivery and Payment, as of 01/2018

1. Scope

  1. Subject to individual contractual agreements, the following General Terms and Conditions of Sale, Delivery and Payment - hereinafter referred to as “GTCs” - shall apply exclusively to all deliveries and services provided by our company to natural persons and legal entities. Other contractual conditions shall not become part of the contract, even if we do not expressly object to them.
  2. Our General Terms and Conditions shall also apply to future sales transactions within the framework of continuous business relations.
  3. Insofar as our GTCs do not contain any deviating provisions, the provisions of the HGB (German Commercial Code) on commercial purchase shall apply first and the provisions of the BGB (German Civil Code) on purchase shall apply second.

2. Form and content of purchase contracts

  1. The order of our contractual partner is a binding offer which we can accept within two weeks by sending an order confirmation in text form or the ordered goods. Additions, changes or verbal agreements to the order shall only become effective through our confirmation in text form.

3. E-commerce

  1. Internet sales of DICK products require our express consent within the framework of an e-commerce agreement to be concluded. In particular, this agreement stipulates the fulfilment of our sales guidelines in the existing CD manual and regulates the copyright protection of our image and text material.

4. Prices and terms of payment

  1. Our list prices valid on the day of conclusion of the contract shall apply. If the service to be rendered by us is due more than 4 months after conclusion of the contract, the list prices valid at the time of expiry of the delivery period shall apply, insofar as they are generally used by us and can be obtained on the market. The prices are exclusive of statutory VAT, ex stock Deizisau, exclusive of packaging, postage/freight and insurance. The minimum order value for deliveries within Germany or to EU member states is 200.00 euros net, for all other deliveries abroad 1,000.00 euros net. If the order value falls below these values for domestic orders and for orders from EU member states, a processing surcharge of 15.00 euros plus statutory VAT will be invoiced and for all other foreign orders a processing surcharge of 50.00 euros plus statutory VAT will be invoiced to cover the additional expenditure.
  2. The contractual partner shall only be entitled to exercise a right of retention and set-off if its counterclaim is based on the same contractual relationship. The offsetting of the contractual partner with counterclaims from another contractual relationship is also permitted, but only with counterclaims that are legally established, undisputed or recognised by us.
  3. If our contractual partner's financial situation deteriorates significantly after the conclusion of the contract, § 321 BGB shall apply to secure our claims with the proviso that in particular the existing delay in the fulfilment of a not entirely insignificant payment obligation towards us shall also be deemed to be a case of a recognisable risk to our claims.

5. Time of delivery, scope of delivery, place of delivery

  1. If we do not deliver on time or in due time, the right of withdrawal of our contractual partner shall be determined exclusively in accordance with § 323 BGB. However, withdrawal without granting a grace period pursuant to § 376 HGB is excluded. In order to be effective, a deadline for performance or subsequent performance to be set for us hereunder must be in text form. A right to withdraw from the contract shall only exist – insofar as it is not a question of withdrawal due to defective goods – if we are responsible for a breach of duty.
  2. If no delivery date and no delivery period has been agreed, we shall deliver within the scope of our existing production and delivery capacities, but at the latest within four months after the conclusion of the contract. Thereafter, Clause 5.1 above shall apply.
  3. If uncertainties exist or arise with regard to the scope or content of an order, an agreed delivery period shall only commence upon complete clarification. The same shall apply in the event of changes to the contract which come about at the instigation of the buyer.
  4. Even if we use EAN codes to encode our goods (country of origin, supplier, article number, unit of quantity) and notify our contractual partner of this, these do not form part of the agreed scope of delivery. We are therefore not liable for any incorrect coding.
  5. In the case of custom-made products, production-related excess or short deliveries of up to 10% are permissible. The total price shall change in accordance with their scope. There are no further or other legal consequences. We reserve the right to make corrections to the order quantities for catalogue types due to packaging. Only the packaging units specified in our catalogues shall be delivered. Partial deliveries are permissible to a reasonable extent for our contractual partner. They will be invoiced separately.
  6. We deliver “ex works” for the account and at the risk of the buyer. The risk of accidental loss and accidental deterioration shall therefore pass to the contractual partner upon handover to the forwarder/carrier or other person designated to carry out the shipment, even if we have assumed responsibility for delivery. In the event of delays in dispatch for which our contractual partner is responsible, the risk shall already pass to him upon notification of the actual readiness for dispatch.
  7. We shall choose the means of transport and the transport route. We shall not be liable for damage and loss during transport. We shall take out transport insurance at the expense and for the account of the contractual partner to cover transport and other damage, charging 0.1%, in the case of overseas transport 0.5%, of the value of the goods plus statutory value added tax. Transport damage must be reported immediately in writing by the contractual partner, the carrier or the person/company commissioned with the delivery.
  8. Transport packaging and all other packaging in accordance with the German Packaging Ordinance (Verpackungsverordnung) will not be taken back, with the exception of pallets. The buyer is obliged to us in the internal relationship to ensure disposal of the packaging at his own expense for our relief under public law.

6. Liability for defects and other breaches of duty, limitation period

  1. If we have to deliver according to drawings, specifications, samples, etc. of the buyer, the buyer shall assume the risk of suitability for the intended purpose.
  2. We shall not be liable for defects caused by unsuitable or improper use, faulty assembly or commissioning by the partner or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the buyer or third parties without our consent.
  3. The prerequisite for our liability for defects, incorrect deliveries or quantity errors (=contractual deviation) is always the timely fulfilment of the buyer's obligations to inspect and give notice of defects in accordance with §§ 377 HGB. Complaints must be made in text form to be effective. If an acceptance of the goods or an initial sample inspection has been agreed, subsequent complaints shall be excluded to the extent that the buyer could have detected the deviation from the contract upon careful acceptance or initial sample inspection.
  4. We shall be given the opportunity to ascertain the deviation from the contract notified in due time and in text form and, in the case of bulk delivery, to sort out the defective goods. Goods which are the subject of a complaint shall only be returned to us immediately upon our request. If the contractual partner does not comply with these obligations, he shall lose any warranty claims. If the complaint is not justified, the costs of returning the goods shall be borne by our contractual partner.
  5. In the event of a timely, written and justified complaint, we shall have the choice of providing subsequent performance by remedying the defect or supplying replacement goods free of defects, provided that in either case performance in accordance with the contract takes place. In the event of refused, failed or unreasonable subsequent performance within the meaning of § 440 sentences 1 and 2 BGB, our contractual partner shall be entitled to demand a reduction of the purchase price (abatement) or to withdraw from the contract in application of the statutory provisions.
  6. Claims of the buyer for damages are excluded irrespective of their legal basis. Claims for damages arising from injury to life, limb or health are excluded from this if we are responsible for a breach of duty. Likewise, we are liable for other damages based on an intentional or grossly negligent breach of duty by us, i.e. our legal representatives or vicarious agents. In addition, in the event of simple negligence, we shall be liable for such damages that arise from the breach of an essential contractual obligation (obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely). In this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
  7. Insofar as we are not liable for intentional or grossly negligent actions and it is not a matter of damage from injury to life, limb or health, claims directed against us shall lapse after one year. In all other respects, the statutory provisions on commencement, suspension, suspension of expiry, recommencement and legal consequences of the limitation period shall apply.
  8. Claims arising from the mandatory provisions of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected. In accordance with § 444 BGB, our liability under the statutory provisions shall also remain unrestricted insofar as we have fraudulently concealed the defect or have assumed a guarantee for the quality of the item.
  9. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.

7. Retention of title

  1. We retain title to the delivered goods until all claims arising from the business relationship with our contractual partner have been settled.
  2. Our contractual partner is entitled to sell the goods subject to retention of title in the ordinary course of business and/or to process or combine them with other items as long as we do not revoke this authorisation in accordance with Clause 7.3 below. However, he may neither pledge the reserved goods nor assign them as security. All claims and rights arising from the resale of our goods - also insofar as they have been processed or combined with other items - are hereby assigned to us by the contractual partner as security. We hereby accept the assignment. Our contractual partner shall remain entitled to collect the assigned claims as long as this authority is not revoked by us in accordance with Clause 7.3 below. We shall be entitled to demand from our contractual partner at intervals of three months in each case a written and complete list of the claims currently assigned to us; this list shall state the exact amounts of the claims as well as the debtors and their addresses.
  3. If our contractual partner defaults on the payment of a claim against us or if other circumstances arise which entitle us to assert the rights as per § 321 BGB in accordance with Clause 4.3 above, we shall be entitled to revoke the power of sale and collection with immediate effect in accordance with Clause 7.2 above, to disclose the assignment of claims to the customers of our contractual partner and to demand immediate payment to us. At the same time, our contractual partner shall be obliged to notify us of the assigned claims and their debtors, to provide all information required for collection, to hand over the documents pertaining thereto and to notify its debtors of the assignment as well as our exclusive collection authority.
  4. The contractual partner shall inform us immediately of any enforcement measures by third parties against the reserved goods or the claims assigned to us, handing over the documents necessary for intervention. This shall also apply to impairments of any other kind.
  5. We shall release the securities to which we are entitled in accordance with the above provisions at the request of our contractual partner to the extent that the realizable value exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent upon us.

8. Place of performance, place of jurisdiction

  1. The place of performance is Deizisau.
  2. The place of jurisdiction for all legal disputes, also in the context of a bill of exchange or check process, is Munich. We shall also be entitled to take legal action at the place of business of our contractual partner.
  3. Clause 9.2 above shall not apply to contractual partners who are not merchants within the meaning of the HGB and who have a general place of jurisdiction within the meaning of the German Code of Civil Procedure (Zivilprozessordnung) in the Federal Republic of Germany.

9. Applicable law

  1. The contractual relationship shall be governed exclusively by the laws of the Federal Republic of Germany, with the exception of international private law. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG - “Vienna Sales Convention”) is excluded.