§ 1 Scope of validity
- These terms and conditions of Fun Supply GmbH (hereinafter: "Fun Supply") apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB (hereinafter: "Buyer"). Fun Supply only recognizes any terms and conditions of the buyer that contradict or deviate from our sales conditions if we expressly agree to their validity in writing.
- These conditions of sale also apply to all future transactions with the buyer, insofar as legal transactions of a related nature are involved (as a precaution, the conditions of sale should always be attached to the order confirmation).
- Fun Supply is only active towards entrepreneurs (§ 14 BGB) in B2B business. The buyer must inform Fun Supply in writing if he does not order the goods as an entrepreneur.
- All declarations and notifications (which are legally significant) that the buyer makes to Fun Supply after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declarations of withdrawal or reduction in price) must be submitted in writing within the meaning of § 127 BGB.
- Individual agreements made with the buyer on a case-by-case basis (including side agreements, additions and changes) always take precedence over these conditions of sale. A written contract or our written confirmation is decisive for the content of such agreements.
§ 2 Offer and conclusion of contract
The order of the goods by the buyer is considered a binding contract offer. If an order is to be viewed as an offer in accordance with § 145 BGB, we can accept it within two weeks.
§ 3 Provided documents
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, including in electronic form - catalogs, product-related documents or other product descriptions. These documents may not be made accessible to third parties unless we give the customer our written consent. If Fun Supply leaves such documents to the buyer, this does not constitute an offer within the meaning of § 145 BGB. If we do not accept the buyer's offer within the period of § 2, these documents must be returned to us immediately.
§ 4 Prices and payment
- The prices for the goods (according to our price lists) are in EURO plus statutory VAT. Packaging of the goods and transport of goods to the buyer will be charged additionally, the latter unless an obligation to collect has been agreed. The minimum order value is 300 EUROS.
- The buyer has to make payments in advance by bank transfer, unless otherwise agreed in writing. The goods will only be sent after receipt of payment. The receipt of payment at Fun Supply is decisive.
- Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changed wage, material and distribution costs for deliveries that are made 3 months or later after the conclusion of the contract.
- Packaging will not be taken back by us and must be disposed of by the buyer.
§ 5 Right of retention
The buyer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
§ 6 Delivery date and scope of delivery
- Delivery times promised by Fun Supply are non-binding and presuppose the timely and proper fulfillment of the buyer's obligations.
- If the buyer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage that has occurred. We reserve the right to make further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item is transferred to the customer at the point in time at which the customer is in default of acceptance or payment.
- If shipment of the goods has been agreed, delivery times and dates refer to the time of handover to the carrier, the forwarding agent or any other person assigned with the transport (including employees of Fun Supply who are responsible for the transport).
- Further legal claims and rights of the buyer due to a delay in delivery remain unaffected.
- Fun Supply is entitled to make partial deliveries if this does not result in any significant additional work or costs for the buyer.
§ 7 Transfer of risk upon dispatch
If the goods are sent to the purchaser at the request of the purchaser, the risk of accidental loss or accidental deterioration of the goods is transferred to the purchaser when they are sent to the purchaser, at the latest when they leave the factory / warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs. If the dispatch or handover is delayed due to a circumstance caused by the buyer, the risk is transferred to the buyer on the day on which Fun Supply is ready for dispatch and has notified the buyer of this. Fun Supply is entitled to determine the type of delivery (in particular transport company, packaging) at its own discretion.
§ 8 Retention of title
- We reserve title to the delivered item until all claims from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to them. We are entitled to take back the purchased item if the buyer acts contrary to the contract.
- As long as ownership has not yet passed to him, the buyer is obliged to treat the purchased item with care. In particular, he is obliged to insure them adequately at replacement value at his own expense against theft, fire and water damage. If maintenance and inspection work has to be carried out, the buyer must carry this out in time at his own expense. As long as ownership has not yet passed, the buyer must immediately notify us in writing if the delivered item is seized or exposed to other interventions by third parties. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the buyer is liable for the loss we incur.
- The buyer is entitled to resell the reserved goods in the normal course of business. The purchaser hereby assigns the claims against the customer from the resale of the reserved goods to us in the amount of the final invoice amount agreed with us (including VAT). This assignment applies regardless of whether the purchased item has been resold without or after processing. The buyer remains authorized to collect the claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the buyer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application to open insolvency proceedings has been made or payments have been suspended.
- We undertake to release the securities to which we are entitled at the request of the buyer, insofar as their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notice of defects as well as recourse/regress of manufacturer
- The buyer's warranty rights presuppose that he has duly complied with his inspection and complaint obligations according to § 377 HGB.
- Claims for defects become time-barred 12 months after delivery of the goods to our buyer. The statutory limitation period applies to claims for damages in the event of intent and gross negligence as well as injury to life, body and health based on an intentional or negligent breach of duty by the user.
- If, despite all due care, the delivered goods show a defect that already existed at the time of the transfer of risk, we will either repair the goods or deliver replacement goods, subject to timely notification of defects. We must always be given the opportunity to provide supplementary performance within a reasonable period. Recourse claims remain unaffected by the above regulation without restriction.
- If the subsequent performance fails, the buyer can - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
- Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear, as well as damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use or due to special external influences. If improper repair work or changes are carried out by the buyer or a third party, there are no claims for defects for this or the consequences thereof.
- Claims of the buyer due to the expenses necessary for the purpose of the supplementary performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the goods we delivered were subsequently moved to a location other than the buyer's branch unless the shipment corresponds to its intended use.
- If the reason for a claim against Fun Supply for reimbursement of transport damage or loss exists, the buyer can only assert this if he fulfills his statutory or contractual obligations to cooperate. This includes, in particular, that the transport damage or loss is reported within a preclusive period of 7 days after knowledge of the damage event, that the transport damage or loss is entered in the present freight documents and that the goods including packaging at the destination is kept ready for inspection by Fun Supply.
- The purchaser's rights of recourse against us only exist insofar as the purchaser has not made any agreements with his customer that go beyond the legally mandatory claims for defects.
§ 10 Withdrawal
- If, after the conclusion of the contract, it becomes apparent that Fun Supply's claim for payment is endangered by the buyer's inefficiency, Fun Supply is entitled to refuse delivery until the buyer has provided the consideration or security has been provided for the goods. If Fun Supply has set an unsuccessful deadline for this, Fun Supply is entitled to withdraw from the contract.
- In the event of a lack of availability of the goods due to unforeseen events such as force majeure, delivery or transport delays or labor disputes, Fun Supply is relieved of the obligation to deliver the goods on time, insofar as Fun Supply is not responsible for the event. Delivery times are extended by the duration of the disruption. Fun Supply will notify the buyer immediately of such a disruption. If the disruption lasts longer than six months, both parties can withdraw from the contract.
- In the event of an unjustified withdrawal from the contract or any other solution by the buyer, Fun Supply is entitled to demand 25% of the gross order value as a lump sum for damages (compensation instead of performance). The buyer reserves the right to prove that no damage or less damage has occurred.
§ 11 Others
- This contract and all legal relationships between the parties are subject to the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention (CISG).
- The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our place of business, in Mettmann (Germany), unless otherwise stated in the order confirmation.
- German law applies exclusively. The UN sales law does not apply.
- All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
- The German version of these terms and conditions is authoritative. The English translation is for information only.