– November 2012 –
1 Scope of Application/Validity
1. The following General Terms and Conditions („GTCs“) shall apply exclusively. Any commercial terms and conditions of the Customer’s conflicting with or deviating from these Terms and Conditions shall not be recognised by GoodToGo unless GoodToGo expressly consented to their validity. These Terms and Conditions shall apply even if GoodToGo, in the knowledge that the conditions of the Customer either conflict with or deviate from these Terms and Conditions, executes the order without reservation. If there are existing individual agreements with the Customer which deviate from the GTCs, these individual agreements shall take precedence and the GTCs shall be deemed merely supplementary.
2. The General Terms and Conditions of GoodToGo shall apply only to entrepreneurs as defined in §310 (1) of the German Civil Code (BGB).
3. Upon confirmation of the ordering process, the Customer declares its agreement to the GTCs that are valid at the time of order. The respective currently valid version of the GTCs can be accessed under b2b.goodtogo.de and stored, or will be sent to the customer by post/e-mail upon request.
2 Conclusion of Contract
The Customer’s orders shall be binding offers which GoodToGo can accept by sending an order confirmation or sending the ordered goods. In the event that the goods are delivered without prior order confirmation, the time of surrender of the ordered goods to the person executing the shipment shall be definitive for order acceptance by GoodToGo.
3 Delivery / Delivery Value
1. Unless otherwise expressly agreed, possible delivery dates and deadlines specified by GoodToGo shall be non-binding.
2. GoodToGo is entitled to make partial shipments if they are reasonable for the Customer. Each partial shipment may be separately invoiced.
3. Unless otherwise agreed, delivery shall generally not take place until the total delivery value of the ordered goods has reached € 100.00.
4 Shipment/Transfer of Risk
1. Unless expressly agreed otherwise, GoodToGo shall elect, by its sole discretion, the means of transport (packaging), shipping route and shipping company. The risk of accidental loss or accidental deterioration of the goods shall pass to the Customer as soon as the goods have been surrendered to the shipping company. The Customer shall be responsible for adequately insuring the goods.
2. If the Customer is in default of acceptance or culpably breaches other duties to cooperate, GoodToGo shall be entitled to demand compensation for any damage that it may incur in this regard, including any additional expenses. Additional claims or rights shall be reserved.
5 Prices / Other Costs
1. All prices shall be ex works plus statutory value added tax and shipping charges incurred (including any C.O.D. charges). The prices that are valid at the time of customer’s order shall be definitive.
2. Unless otherwise agreed, the shipping costs shall be borne by the Customer.
6 Payment Terms, Set-Off, Retention
1. The invoice prices shall be due immediately without deductions subsequent to receipt of invoice. The statutory regulations relating to the consequences of default of payment shall apply. Payment shall be deemed effected once GoodToGo can dispose of the unreduced amount. Payment terms otherwise agreed shall apply to both invoices and credit notes. Each party shall bear its own bank charges. In the event of foreign transfer, the Customer shall be obligated to effect payment via SEPA transfer if available in its country. Otherwise, the Customer will be charged any additionally incurred bank charges.
2. If a cash discount is agreed, such discount will apply to both invoices and credit notes. The Customer shall not be entitled to deduct cash discounts if it is in default of other payments.
3. If the Customer is in default of payment, GoodToGo may make further delivery conditional on the grant of a direct debit authorisation or on advance payment to be effected within a reasonable period or may only deliver further orders C.O.D.
4. Customer payments shall always first be deducted from any costs incurred by GoodToGo, then from interest, and finally from the most senior claim or, at the discretion of GoodToGo, from the claim with the least security.
5. The Customer shall be entitled to set-off against a payment claim of GoodToGo only if the claim under which the Customer is entitled to refuse payment has derived from the same performance relationship from which the payment claim of GoodToGo arises; otherwise only if the counterclaims have been recognised by a declaratory judgment or are undisputed or acknowledged by GoodToGo. The Customer shall be authorised to exercise its right of retention if its counterclaim is based on the same order.
7 Complaints/Notification of Defects/Warranty
1. The assertion of any rights of the Customer arising from product defects presupposes that it has properly complied with the owed duties to inspect and report defects, pursuant to §377 of the German Commercial Code (HGB). The Customer must examine the incoming goods without delay and report any defects discovered to GoodToGo in writing within five (5) working days following such receipt of the goods, or, in case of latent defects, without delay, however no later than within five (5) working days after discovery of the defect, specifying the nature and extent of the defects, the bill of delivery and the invoice number, respectively. A cut-off period (Ausschlussfrist) of one (1) year shall apply to the assertion of claims due to latent defects. If the Customer does not receive the goods, this must also be reported within five (5) working days following receipt of the invoice. If there is no notification of defects in due time and in due form, performance shall be deemed duly rendered by GoodToGo and warranty claims shall be excluded.
2. Upon request by GoodToGo to this effect, faulty goods must be returned to GoodToGo’s warehouse (GoodToGo GmbH, Südstr. 48 in 44625 Herne, Germany) within five (5) working days.
3. If the complaint by the Customer is justified, at its discretion GoodToGo shall render subsequent performance (Nacherfüllung) in the form of remedy of the defect or replacement delivery.
4. If subsequent improvement or replacement delivery is not successful, the Customer at its discretion may either withdraw from the contract or reduce the purchase price. This shall have no effect on further-reaching claims for compensation on the part of the Customer.
5. GoodToGo shall be liable for the impossibility of performance in cases of intent or gross negligence pursuant to the statutory provisions, liability being limited to foreseeable damage typical of this type of contract. Any further-reaching claims of the Customer based on impossibility of delivery shall be excluded. This shall not affect the Customer’s right to withdraw from contract.
6. Compensation claims on the grounds of other breach of pre-contractual, contractual or statutory duties of GoodToGo’s shall be ruled out to the extent GoodToGo, its employees, or vicarious agents have not acted with intent or gross negligence and such compensation claims do not involve injury to life, limb or health. This shall not affect liability for breach of duties, the proper performance of which shapes the underlying contract and on the compliance of which the Customer may reasonably rely (cardinal obligations). Nor shall the exclusion of liability refer to liability under the Product Liability Act (Produkthaftungsgesetz), the exclusion of which cannot be contracted out or to liability based on a circumstance for which GoodToGo has assumed a guarantee. In the event of material and financial loss caused by negligence, the liability of GoodToGo and of its vicarious agents shall further be limited to losses that, at conclusion of contract, are foreseeable and that typically occur.
7. Save in cases of intent, gross negligence or if claims are based on defects arising from injury to life, limb and health – claims for defects under purchase law on shall become time-barred twelve (12) months starting from the passage of risk. This shall have no effect on the limitation period in the event of supplier’s recourse pursuant to §§478, 479 of the German Civil Code. In all other respects, §478 of the German Civil Code shall apply provided that, at the discretion of GoodToGo, an agreement on delivery of additional goods in excess of the contractually agreed quantity, or the granting of discounts to the Customer on subsequent orders is also to be deemed compensation for the limitation of the Customer’s recourse claims as defined in §478(4), first sentence of the German Civil Code.
Items which are exclusively distributed by GoodToGo can be returned by the Customer in accordance with the conditions set out in GoodToGo’s general rules for returns. The respective current version of the General Rules for Returns is available under b2b.goodtogo.de and can be stored or it will be sent to the customer by mail/e-mail upon request.
9 Reservation of Title
1. GoodToGo shall reserve title in the goods delivered until all payments from the existing business relationship with the Customer have been received infull, reservation, in this respect, referring to the acknowledged balance.
2. Customer is obligated to handle the goods with care. GoodToGo must be notified without delay of any damage or destruction of the goods delivered. The Customer herewith assigns to GoodToGo all accounts receivable up to the final invoice amount (including VAT) of GoodToGo’s aggregate receivables accruing to it – against its buyers or third parties – from re-sale. The receivables assigned to GoodToGo in advance by the Customer shall include the acknowledged balance and shall be limited to 120% of the realisable value of the goods delivered to the Customer by GoodToGo. The Customer shall still be authorised to collect such receivables after such assignment. This shall not affect GoodToGo’s authority to collect such receivables itself. However, GoodToGo undertakes not to collect such receivables as long as the Customer satisfies its payment obligations from the proceeds received and is not in default of payment and, in particular, as long as no petition for the institution of composition, insolvency or bankruptcy proceedings has been filed and no cessation of payment is at hand. If this is the case, however, GoodToGo may demand that the Customer notifies it of the assigned receivables and their debtors, that the Customer provide it with all the data required to collect the receivables, that it surrender the associated documents and that the Customer notify the debtors (third parties) of such assignment.
3. At the request of the Customer, GoodToGo shall waive the reservation of title from a delivery of goods if the Customer has satisfied all claims associated with the delivery, and there is reasonable security for the other receivables arising from the current business relationship. GoodToGo also undertakes – at the Customer’s request –to release the securities it is entitled to if – not only in the short term – the realisable value of the securities exceeds the receivables to be secured by more than ten (10) percent.
4. As long as reservation of title in the goods exists, the Customer may not pledge, transfer by way of security, or assign the goods delivered in any other way that could affect their security with the exception of resale in the due course of business. If goods delivered by GoodToGo subject to reservation of title, or receivables assigned to GoodToGo are distrained or seized by third parties, the Customer shall be obligated to inform the enforcing officer of the reservation of title or the assignment by way of security and to inform GoodToGo without undue delay by providing it with the distraint and seizure protocol. In such cases, the Customer undertakes to bear the costs of measures to lift the seizure or distraint.
5. If the Customer is in default of payment for more than ten (10) working days or ceases payments completely or if a petition for the institution of composition, insolvency or bankruptcy proceedings has been filed, or such proceedings are instituted on the Customer’s assets or if the Customer does not comply with its contractual duties in any other way, the Customer, at the request of GoodToGo and without delay shall grant GoodToGo access to the goods being subject to its reservation of title which are still available at the Customer’s. In such case, GoodToGo shall be entitled to secure and take back the goods that are subject to its reservation of title at the Customer’s expense. In the cases mentioned above, GoodToGo is entitled to revoke the Customer’s right of resale in writing.
10 Online Orders
The Customer is given the opportunity to place orders online via the B2B portal on the website of GoodToGo. For this purpose, the Customer shall receive personal access data which it may exclusively entrust to its employees but not to third parties. GoodToGo shall be entitled at any time and without giving reasons to exclude the Customer from the opportunity to order online without special notification by GoodToGo being required.
11 Protection of Minors
If the goods delivered are marked with an age rating for reasons of protection of minors, these must be adhered to by the Customer without fail. The above-mentioned products may only be passed on to persons who have reached the specified age.
12 Formal Warning/Cease and Desist
1. If the Customer receives a formal warning from a third party with regard to an item acquired from GoodToGo and is asked to cease andn desist sale this item, the Customer shall be obligated to inform GoodToGo thereof without delay. The Customer shall be obliged to coordinate the defence against the alleged claims with GoodToGo. If the Customer makes a ceaseand-desist statement without prior consultation with GoodToGo, warranty claims against GoodToGo shall be excluded.
2. If GoodToGo receives a formal warning from a third party with regard to an item offered by it and is asked to cease and desist this item, GoodToGo shall be entitled, at its own discretion, without acknowledging any legal obligation to do so and without prejudice to the factual and legal position, to make a cease-and-desist declaration, to cease and desist selling the product in question and request the Customer to also cease and desist sales and advertising of the products and return the products to GoodToGo. If the Customer fails to cease and desist selling and advertising the products in question despite being requested by GoodToGo to do so, warranty claims shall be excluded. With regard to the rest, GoodToGo shall be liable only if the warning is justified.
13 Jurisdiction/Applicable Law, Place of Performance
If the supplier is a merchant, place of jurisdiction shall be at GoodToGo’s registered place of business; however, GoodToGo shall also be entitled to sue the Customer at the court that is competent for its place of residence. German law shall apply excluding the United Nations Convention on Contracts for the International Sale of Goods. Unless otherwise specified in the order confirmation, the place of performance shall be GoodToGo’s registered place of business.