General Terms and Conditions of edding International GmbH for Exports
I. Scope of Application
- These Terms and Conditions of Sale and Delivery (hereinafter „the Terms and Conditions“) shall apply exclusively to all international sales and deliveries of products (hereinafter referred to as „Products“) by edding international GmbH (hereinafter referred to as „edding“) abroad. General terms and conditions of the Buyer which contradict or amend these Terms and Conditions shall not apply vis-à-vis edding. This shall also apply if edding does not expressly contradict such terms and conditions or if it fulfils its contractual obligations without reservation.
- These Terms and Conditions shall also apply to any and all future business transactions with the Buyer.
All offers of edding are non-binding.
III. Delivery, Payment
- All deliveries of Products bearing the trademark „edding“ are made ex works [„FCA“] Isernhagen (D) according to INCOTERMS 2020.
- Partial deliveries are permissible.
- All delivery dates are non-binding.
- In no case shall edding be liable for delays of delivery due to force majeure, such as government interference or shortage of raw materials. If a delilvery is delayed by force majeure for at least four weeks, edding has the right to rescind the contract.
- The deliveries shall be examined for any defects immediately after receipt. The Buyer shall give written notice of recognisable defects and complaints without undue delay. Defects which become apparent only subsequently shall be notified by written notice without undue delay after they become apparent. The notice has
to precisely describe the defect and the packaging slip has to be enclosed.
- All invoices shall be paid without discount.
- For deliveries of Products with a net-value of less than EURO 500.00 a surcharge of EURO 50.00 will apply.
IV. Rights of Set-off and Retention
The Buyer is entitled to rights of set-off or rights of retention only if his counterclaims are confirmed by final judgement, are uncontested or acknowledged by edding.
V. Change of Appearance
- The Buyer will use eddings´ trademarks only in accordance with the statutory provisions and only in direct relation to the offering and sale of eddings´ Products.
- Any alteration in the Products themselves or their packaging without eddings explicit approval is prohibited. The same applies to the offering and sale of any Product which itself or of which the packaging was altered.
VI. Proof for exemption from VAT
- The Buyer is obliged to provide edding with all information and with all documents which edding needs to prove to the authorities the pre-requisites for the exemption of the delivery from valueadded-tax (Umsatzsteuer). If the delivery is made into the remaining territory of the European Union („übriges Gemeinschaftsgebiet“ in the meaning of Sec. 1 para 2a, 1st sentence of the German Value-added-Tax-Code) this includes in particular the valueadded-tax-identification-number (Umsatzsteuer-Identifikationsnummer) of the Buyer and if the delivery is made into the territory outside the European Union this includes in particular the proof of export (Ausfuhrnachweis).
- If within two weeks after request by edding the Buyer does not comply with his obligations under para 1, the Buyer is obliged to pay value-added-tax regardless of any payments made.
VII. Retention of title
- edding retains title to the products delivered (hereinafter „the Retained Products“) until all – current and future – claims arising from the business relationship with the Buyer have been fulfilled. The Buyer is obliged to store the Retained Products with care and to provide reasonable insurance coverage. Seizures or other judicial proceedings relating to the Retained Products shall be notified to edding without undue delay.
- Within the scope of ordinary business operations the Buyer may resell the Retained Products against immediate payment or subject to retention of title. This right terminates if the Buyer stops payments. If the Buyer resells Retained Products, the Buyer hereby assigns to edding all present and future accounts receivable resulting from the resale, including all ancillary rights. Until this right is revoked by edding, the Buyer remains entitled to collect said accounts receivable in his own name from the respective parties. Despite the legal possibility, edding shall not collect the accounts receivable itself as long as the Buyer fulfils his obligations, in particular as long as he is not in default with his payments, has not suspended payment and no filing for the commencement of insolvency proceedings has been made.
- To the extent that the value of the securities provided to edding exceeds the claims of edding by more than 50%, edding shall upon the Buyer´s request release securities at its discretion. With the full payment of all claims of edding resulting from the business relationship with the Buyer the title of ownership to the Retained Products as well as the assigned accounts receivable transfers to the Buyer.
- Public statements of edding or its assistants, in particular in advertising or labelling, do no constitute any description of the condition of the Products or any guarantee of the condition of the Products.
- If the delivered Products have defects for which edding is responsible edding is only obliged to deliver new Products free of defects. If the delivery of new Products fails or edding denies the delivery of new Products the Buyer may reduce the price or rescind the contract.
- The warranty period shall be 12 months from the delivery of the Products.
- All further claims of the Buyer are excluded, notwithstanding any claims pursuant to art. IX (Liability) of these Terms and Conditions. Claims of the Buyer pursuant to Sec. 478, 479 of the German Civil Code (BGB), with the exception of claims for damages, remain unaffected.
- edding shall only be liable for damages if the liability is mandatory under the applicable law, e.g. under the German Product Liability Act (Produkthaftungsgesetz) and in case of injury to life, body or health, or if edding has granted a guarantee or maliciously hides a defect or if the damage is attributable to gross negligence or if edding through its fault commits a material breach of the contract.
- In all other cases edding has no liability for damages whatsoever, irrespective of the legal basis.
- In any event the liability shall be limited to such damage which edding ought to have foreseen at the time of entering into the contract in the light of the facts and matters which edding then knew. This limitation of liability shall not apply if the limitation of liability is prohibited by law, e.g. with respect to claims under the German Product Liability Act and in case of injury to life, body and health; the limitation of liability does also not apply if edding has granted a guarantee or if the damage is attributable to wilful or malicious conduct or to gross negligence.
- The exclusion and/or limitation of liability according to the above paragraphs also applies to the personal liability of employees, representatives and servants of edding.
X. Governing Law, Place of Fulfillment, Place of Jurisdiction
- The legal relationships between edding and the Buyer shall be governed exclusively by material German Law under exclusion of conflicts of law; the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 („CISG“) shall not apply.
- Place of performance is Ahrensburg, Germany.
- Place of jurisdiction is Ahrensburg, Germany. edding has also the right to bring claims against the Buyer at his general place of jurisdiction.