TERMS AND CONDITIONS OF DAISO-EUROPE (Owner Manuel Busch)
§1 1. Scope of validity
1.1 The following terms and conditions are applicable to all our offers, sales, deliveries and services and shall form part of the contract unless a separate contractual agreement is concluded in writing. They shall not apply if our contract partner is a private individual and does not act in a professional or commercial capacity. They shall also apply to all future business relationships, even if they are not expressly agreed as being applicable to future orders.
1.2 We hereby expressly reject any and all deviating or supplemental General Terms and Conditions of the Buyer. These shall also not apply if the Buyer has based his order or other declaration upon them or has rejected the applicability of our General Terms and Conditions.
§2 Offers and Orders
2.1 Our offers are non-binding and may therefore be revoked by us prior to delivery for acceptance by the customer and for 2 working days thereafter, unless they have been described as binding in writing. An effective contract therefore comes into existence only through our order confirmation or the dispatch of the goods.
2.2 Diagrams, drawings, specifications as to weight, dimension, performance and use, as well as other descriptions of the goods set forth in the documents included with the offer are indicative only, unless they are expressly confirmed to be binding. Such statements do not constitute any agreement or guarantee as to corresponding condition or durability of the goods, unless expressly agreed, in writing, to constitute the same. Customer expectations concerning the goods, or the use thereof do not constitute any agreement or guarantee.
§3 Doubtful credit rating
3.1 If, after concluding the contract, we become aware of circumstances that cause us to have doubts about the Buyer’s ability to pay, we may make further deliveries contingent upon the Buyer making advance payment for the goods. We can require the Buyer to make advance payment within an appropriate period and withdraw from the contract if the advance payment is not paid on time; the Buyer can furnish us with collateral in the form of a bank guarantee instead of the advance payment. If we have already delivered the goods, the purchase price shall immediately become due for payment in full, regardless of any agreed payment deadlines.
3.2 Reasons for doubting the Buyer’s ability to pay include the initiation of insolvency proceedings over the Buyer’s assets or the failure to make payments to us or third parties on time
4.1 All prices are net, ex works, without packaging, unless agreed otherwise.
4.2 Statutory value added tax is not included in our prices and the rate applicable on the billing date shall be indicated separately on the invoice.
4.3 If more than 4 monthspass between the date on which the contract is concluded and the date of delivery, without this being due to a delay in delivery for which Daiso Europe is responsible, and if our applicable price list has changed during this time, we may demand the list price applicable on the date of delivery instead of the agreed purchase price. We will send the Buyer an appropriately amended order confirmation prior to delivery. In this case, the Buyer may withdraw from its order in respect of the goods for which the price has been increased. The Buyer must declare its intention to withdraw by not later than on the fifth day after receiving the amended order confirmation.:
A Declaration may be sent by Fax is not valid
A Declaration may be sent by E-Mail is valid
§5 Delivery time
5.1 All indicated delivery dates are non-binding and are agreed as indicative only, unless we have expressly described them as binding. For non-binding delivery dates, a delivery within 30 daysof the indicated delivery date shall in any event still be deemed to be a timely delivery.
5.2 . If we are unable to adhere to an expressly agreed deadline or fall behind for other reasons for which we are responsible, the Buyer shall grant us an appropriate grace period which starts with the stated delivery period + 14 days. If this grace period expires without success, the Buyer shall be entitled to withdraw from the contract.
5.3 If performance becomes temporarily impossible or considerably more difficult for us, whether in full or in part, due to force majeure or for other extraordinary circumstances beyond our control, the agreed delivery time shall be extended by the duration of the obstacle to performance. The same applies to a deadline for the rendering of service set by the law or by the Buyer, in particular for grace periods set in the event of default.
5.4 Prior to the expiry of the delivery time or the performance deadline extended in accordance with para. 3, the Buyer shall not be entitled to withdraw nor to receive compensation. If the obstacle to performance lasts longer than 4 weeks, both the Buyer and we shall be entitled to withdraw from the contract if the contract has not yet been executed. If the Buyer is entitled to withdraw from the contract in accordance with the contract or the law (e.g. due to a lack of interest) without setting a grace period, this right shall remain unaffected.
5.5 In the event of a delay in delivery that is not based on intent or gross negligence, claims for compensation of all kinds shall be precluded.
§6 Shipping and transport risk
6.1 Shipping is at the cost and risk of the buyer; the buyer has to bear this risk even if exceptionally shipping paid by sender has been arranged. Goods are not insured by the seller.
6.2 Unless otherwise expressly agreed in writing, we are authorised to make partial deliveries to a reasonable extent.
§7 Payment terms
7.1 Our invoices are payable within 14 days from the invoice date with a 2% discount or within 30 days in full.
7.2 The Buyer shall be in default, without any warning by ourselves, if it does not pay the purchase price within 30 daysof becoming due and receipt of the invoice or an equivalent demand for payment.
7.3 Gerät der Käufer mit einer Zahlung in Verzug, werden seine sämtlichen Zahlungsverpflichtungen aus der Geschäftsverbindung mit uns – auch solche, für die Wechsel gegeben worden sind – sofort fällig. In diesem Fall sind wir berechtigt, von dem betreffenden Zeitpunkt an Zinsen in gesetzlich festgelegter Höhe zu verlangen. Der Nachweis eines höheren Schadens durch den Verkäufer bleibt vorbehalten.
7.4 If the Buyer is late making a payment, all of its payment obligations arising from the business relationship with us shall immediately become due. In this case, we are entitled to demand interest in the legally established amount with effect from the relevant moment. The Vendor reserves the right to provide proof of further damage.
7.5 The Buyer is entitled to set-off, even if complaints or counterclaims are asserted, only if the counterclaims have been legally established, acknowledged by the Vendor or are not in dispute. The Buyer is authorized to exercise its right of retention if its counterclaim is based on the same purchase agreement.
8.1 After receipt of the goods at the point of destination, the buyer must notify us immediately within 1 weekin writing of any apparent defects stating in detail the nature and extent of the defects. Defects that become apparent at a later date have to be notified immediately after detection, stating in detail the nature and extent of the defects. The date of our receipt shall decide about the timeliness of the notice of such a complaint.
8.2 We are not obliged to provide any warranty if the Buyer has not immediately complained about an apparent fault in writing. In the case of hidden faults, which could not be discovered even with careful execution of the obligations of the customer pursuant to Art. 377 German Commercial Code, the complaint shall be raised immediately after the fault has been found. If the product has a fault for which we are responsible and the Buyer complains about it promptly in writing, we will undertake to rectify the fault – to the exclusion of the right of the Buyer to withdraw from the contract or to reduce the purchase price – unless we are entitled to refuse rectification on the basis of a statutory regulation. For each individual fault, the Buyer shall grant us an appropriate period of time in which to effect rectification.
8.3 Rectification can take the form of the elimination of the fault or the delivery of a new product, at the Buyer’s option. We are entitled to reject the method of rectification chosen by the Buyer if it is associated with disproportionately high costs. During rectification, a reduction in the purchase price or withdrawal from the contract by the Buyer are precluded. Rectification is deemed to have failed after the second unsuccessful attempt. If rectification has failed or the Vendor has rejected the rectification overall, the Buyer can demand a lowering of the purchase price (reduction) or declare its withdrawal from the contract, at its option.
8.4 The Buyer can only bring claims to compensation under the following conditions because of the fault if the rectification failed or we refused to carry out rectification. The right of the Buyer to bring further claims for compensation under the following conditions remains unaffected.
8.5 In accordance with statutory provisions, we are liable without restriction for intentional or grossly negligent breaches of duty as well as for damage caused by an injury to life, limb or health. Moreover, we shall only be liable if the breached contractual obligation is of material importance for achieving the purpose of the contract and only up to the amount of the typically foreseeable loss.
8.6 The limitation of liability in accordance with para. 5 applies accordingly to other than contractual claims for compensation, in particular claims arising from tortious liability, with the exception of claims in accordance with the German Product Liability Act. It further also applies to the benefit of our executives, employees, workers, representatives and vicarious agents.
8.7 If we have issued a guarantee or quality and/or shelf life in respect of the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage that is based on the absence of the guaranteed quality or shelf life but does not occur directly on the goods, if the risk of such damage is apparent from the guarantee of quality and shelf life.
8.8 We shall also be liable for damage caused by ordinary negligence, if such negligence relates to the breach of contractual obligations which endanger the achievement of the contract purpose (essential obligations). However, we shall only be liable if the damage is typically associated with the contract and is predictable.
8.9 All other forms of liability shall be excluded, regardless of the legal nature of the claim asserted. If our liability is excluded or limited, the same applies to the personal liability of our employees, staff, colleagues, representatives and vicarious agents.
§9 Reservation of title
9.1 We shall retain possession of the goods (goods subject to retention of title) until all payments due under the purchase agreement have been received. The delivered goods shall pass into the possession of the Buyer only when the Buyer has fulfilled all of its liabilities under the business relationship, including subsidiary claims, claims for compensation and redemptions of cheques and bills of exchange. In the case of the cheque/bills of exchange procedure, the retention of title in all of its forms listed here shall expire not with the payment by cheque but only with the redemption of the bill of exchange.
9.2 The Buyer shall notify us in writing without delay of all third-party interventions, in particular of enforcement measures and other impairments of its property. The Buyer shall make good all damage and costs we incur, which arise through a breach of this obligation and through necessary measures to protect against third-party interventions.
9.3 If the Buyer does not comply with its obligation to make payment, despite our reminder, we can, without prior notice, demand that the Buyer release the goods that are still in its possession and subject to the retention of title. The Buyer shall bear the transport costs associated with this. The attachment of the matter subject to the retention of title by us always includes a withdrawal from the contract. We are entitled to dispose of the goods subject to the retention of title following their retention. The proceeds of disposal shall be offset against our outstanding claims.
§10 Place of fulfilment
The place of fulfilment for payments is the company headquarter of the seller, for our deliveries of goods the place of shipping.
§11 Data processing
The Buyer agrees that we may process the data about the Buyer received in connection with the business relationship in accordance with the Federal Data Protection Act for the fulfilment of our business purposes, in particular to store them or transmit them to a credit reference agency, where this is done within the scope of the identified purpose of the contract or required for the preservation of our legitimate interests, and there is no reason to assume that the legitimate interests of the Buyer outweigh the preclusion of the processing of these data, in particular their transmission.
§12 Jurisdiction and applicable law
12.1 The contractual relationship between the Buyer and ourselves is governed exclusively by the law of the Federal Republic of Germany, even if the Buyer has its place of residence or business abroad. Application of the Uniform Law on the International Purchase of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods is precluded.
12.2 The Buyer is not authorized to cede claims arising from the purchase agreement without the permission of the Vendor.
12.3 If the Buyer is a merchant legal entity under public law or a special fund under public law, the place of jurisdiction for both parties – including for complaints regarding cheques and bills of exchange – 56068 Koblenz. We are, however, also entitled to sue the Buyer at its general place of jurisdiction.