1.1 All offerings, deliveries, and other performances (hereinafter “PERFORMANCES”) from Deuter Sport GmbH (hereinafter “Deuter”), including all future PERFORMANCES, shall solely be provided based on these General Conditions of Sale and Delivery (hereinafter “GTC”) and solely in B2B business transactions with Deuter’s customer (hereinafter “CUSTOMER”). Pre-existing and soon-to-be concluded individual agreements with CUSTOMERS shall take precedence over these GTC if they contain rules and arrangements that differ from these GTC.
1.2 These GTC shall also solely apply if Deuter does not explicitly object to differing business conditions. An execution of PERFORMANCES by Deuter with knowledge of the customer’s differing conditions does not constitute approval by Deuter.
2. Offerings and Contract Conclusion
2.1 Deuter’s offerings are – unless otherwise explicitly denoted by Deuter – always non-binding and non-committal. The respective contract between Deuter and the CUSTOMER shall only become legally binding when Deuter issues a written confirmation. This shall also apply to agreements and ancillary agreements.
2.2 Documents belonging to offerings; such as illustrations, drawings, weight or size information, samples, etc.; are customary approximate values. The delivered branded goods from the order shall be expressly subject to changes in material and execution in the context of technological progress.
3. Prices, Payment Terms
3.1 Unless otherwise expressly stipulated with the CUSTOMER, all of Deuter’s prices shall be valid in accordance with Deuter’s valid price list at the time of order confirmation plus VAT.
3.2 Deuter’s invoices, when paid within 10 days from the invoice issuing date, shall be payable with a 3% discount; within 30 days, the net invoice amount is due free of charges, unless otherwise stipulated in writing by the CUSTOMER and Deuter. Deuter reserves the right, particularly for new customers and in case of existing late payment from a CUSTOMER, to carry out further provision of deliveries to the CUSTOMER against prepayment or request other securities deemed appropriate by Deuter, irrespective of other existing laws. 3.3 If the payment deadline or terms of payment stipulated in writing between Deuter and the CUSTOMER are exceeded, Deuter shall have the right, irrespective of other existing rights, to charge interest in arrears that is 8% over the base interest rate of the European Central Bank. This shall also apply for deferred payment.
3.4 Deuter shall retain the right to adjust prices, provided that Deuter has not issued any written order confirmation to the CUSTOMER.
3.5 The CUSTOMER shall have a right to offset with counterclaims if they are deemed to be undisputed or legally binding. The same shall apply for the CUSTOMER’s assertion of rights of retention. 4. Delivery 4.1 All delivery deadlines shall be approximately, but non-bindingly provided, unless Deuter has explicitly stipulated a fixed delivery date with the CUSTOMER.
4.2 Unless otherwise expressly stipulated with the CUSTOMER, deliveries from Deuter are generally freight prepaid. For deliveries with an order value below 200 EUROS, Deuter shall invoice the CUSTOMER the lump sum applicable at the time of delivery.
4.3 Deuter shall have the right to make partial deliveries and independently invoice them to the CUSTOMER. 4.4 If Deuter cannot comply with binding delivery or performance dates due to force majeure or other reasons for which Deuter is not responsible, Deuter shall immediately inform the CUSTOMER of this and, at the same time, issue expected, new delivery or performance dates.
4.5 In case of delayed acceptance by the CUSTOMER, a prohibition on cooperation or a delivery delay due to other reasons attributed to the CUSTOMER, Deuter shall have the right, irrespective of their other vested rights, to demand remuneration for damages that this has caused to Deuter, including any extra expenses associated therewith. Furthermore, the risk of accidental deterioration and loss of the goods in question shall be transferred to the CUSTOMER. 5. Guarantee and Returns, Statute of Limitations
5.1 The goods shall be deemed to have been contractually delivered if they correspond to the product descriptions specified for the customer. This shall also apply in case of slight or common differences in quality, size color, weight and the like, if these differences do not significantly affect proper use of the goods.
5.2 The CUSTOMER’s warranty claims require that the same have issued a written complaint about the defect in question to Deuter in a timely manner and that they have complied with their inspection obligations subject to law. In case of blatant defects, this inspection must take place no later than 7 days after receiving the goods in question; in case of defects that are discernable via a proper inspection, no later than 14 days after receiving the goods in question; and in all other cases, no later than 14 days after discovering a specific defect. This shall also apply accordingly in the case of short deliveries.
5.3 The CUSTOMER shall immediately provide the goods they deem defective together with a copy of the pertinent delivery note for review at Deuter’s request. If there is actually a defect in the goods in question, Deuter shall have the right to render supplementary performance through remedial action bearing expenses no greater than the respective purchase price, or the right to make a replacement delivery of new, defect-free goods. Should the repair fail, become impossible, or fail to take place within a period of time deemed reasonable by the CUSTOMER, the same shall have the right; to the extent of legal requirements, if applicable; to withdraw from the contract at their discretion or, alternatively, to reduce the purchase price or assert claims for damages, considering the limitations of liability in these GTC. For partial PERFORMANCES, the right to withdraw shall be limited to the specific, defective part.
5.4 Unless they have express written permission from Deuter, the CUSTOMER shall be prohibited from confirming to their customer the defects of the products delivered to them by Deuter or from making other acknowledgements or assurances of the defect guarantee. Deuter shall generally not be liable for guarantees and other guarantee commitments that the CUSTOMER gives to their customer and that go beyond the scope governed by these GTC. This shall not apply in cases in which the consumer has a corresponding, further guarantee claim from Deuter due to applicable, mandatory, statutory regulations.
5.5 The guarantee or statute of limitation period shall amount to 12 months from the transfer of risk or acceptance. Any modifications or repairs to goods delivered by Deuter that are done without their prior, express, written permission shall invalidate Deuter’s guarantee. The same shall apply for improper storage or any deviation from proper use of goods. Assertion of guarantee claims shall not affect Deuter’s existing payment claims. In case of payment delay on the part of the CUSTOMER, Deuter’s guarantee obligations shall be suspended until the payment obligation is fulfilled.
5.6 Returning non-defective goods with the Deuter customer number and the Deuter invoice number shall only be authorized with Deuter’s express prior permission. Prerequisite for a coupon due to a return of non-defective goods is that the goods must be received by Deuter in fully saleable condition. Deuter shall reserve the right to reasonably reduce the coupon amount.
6. Liability and Limitation of Liability
6.1 Unless otherwise stated by these GTC including the following provisions, Deuter (including liability for their employees, legally or contractually appointed representatives and for their other vicarious agents) shall be liable in case of breach of contractual and non-contractual obligations according to applicable, mandatory, statutory regulations.
6.2 Deuter shall be liable for damages – no matter what the legal reason – in case of intent and culpable negligence. In case of simple intent, Deuter shall only be liable a) for damages arising from injury to life, body, or health, b) for damages due to breach of an essential contractual obligation, whose fulfillment makes it possible to properly execute the contract in the first place, and on the observance of which the contractual partner regularly relies and may rely. In this case, however, Deuter’s liability shall be limited to foreseeable, typically occurring damages and the final invoice amount (net) of the goods delivery in question that has triggered the customer’s claim for damages or is associated therewith.
6.3 The limitations of liability arising from the preceding Clause 6.2 shall not be applicable if Deuter fraudulently conceals a defect or has expressly accepted in writing a guarantee for the goods’ quality. Any liability on the part of Deuter that goes beyond these GTC due to applicable, statutory, mandatory provisions within German product liability law shall remain unaffected by the previous limitations of liability.
7. Reservation of Title
7.1 Delivered goods shall remain the property of Deuter (hereinafter “CONDITIONAL COMMODITIES”) until all open receivables from the business relationship (including all balance receivables from the current account) are fulfilled by the customer in question. For the current account, Deuter’s securities shall be deemed securities for the balance claim in question.
7.2 The CUSTOMER is obliged to carefully handle and separately store the delivered CONDITIONAL COMMODITIES and shall ensure them against customary risks at their own expense. The CUSTOMER shall have the right to resell the CONDITIONAL COMMODITIES in a proper business transaction. However, they shall immediately assign any receivables that arise from this resale amounting to the respective final invoice amount, including VAT, to Deuter, who will accept the assignment.
7.3 Even after this assignment, the CUSTOMER, in addition to Deuter, shall retain the right to collect this receivable. Deuter shall not collect the receivable, as long as the CUSTOMER is not in default of payment and, particularly, no application for opening settlement or insolvency proceedings has been filed or payments have not stopped. In these cases, the CUSTOMER shall immediately mention to Deuter the assigned receivables and the respective third-party debtors including any other information required for collecting the receivable, submit documents and notify the third-party debtors about the assignment. The CUSTOMER shall immediately authorize Deuter or third-parties authorized in writing by Deuter to collect CONDITIONAL COMMODITIES that are stored at the customer or third party’s facilities and that have not been paid by the CUSTOMER. They shall permit access to the appropriate premises to Deuter and/or their representatives. Repossession of CONDITIONAL COMMODITIES is not to be seen as a withdrawal from the contract. The latter shall only apply if Deuter explicitly declares this withdrawal in writing. Deuter is not obliged to specify a time period for repossession. Deuter shall have the right to sell the CONDITIONAL COMMODITIES at their own discretion via an auction or in the open market and offset the proceeds against the purchase price, or the right to withdraw from the contract.
7.4 In case of seizures or other interventions from third parties, the CUSTOMER shall refer to Deuter’s existing rights and immediately report them in writing so that Deuter can exercise their rights accordingly. Unless the third party is able to reimburse Deuter the legal or extrajudicial costs that have arisen in this matter, the CUSTOMER shall be liable for this.
8. Data Storage, Confidentiality
8.1 Data required for business processing shall be saved within the permissible framework of the Federal Data Protection Act (BDSG) and the Telemedia Act (TMG) and passed on to associated companies, particularly other companies belonging to the Schwan-STABILO group, as part of order processing as per §§ 15 ff. Companies Act (AktG). Personal data shall be handled confidentially. The CUSTOMER shall agree to the collection, processing and use of customer-related data in the specified scope.
8.2 If Deuter grants the CUSTOMER electronic intranet access, the CUSTOMER shall undertake to not give the resulting data and the password to unauthorized third parties and accordingly protect and store this data from any third-party access and abuse according to the latest state-of-the-art technology. Any storage of this data in cloud storage requires prior express written permission from Deuter.
8.3 Any materials and information provided to the CUSTOMER by Deuter – unless they are publicly accessible, generally known, or obviously intended for disclosure – must be handled confidentially by the CUSTOMER and may not be reproduced, published, nor made accessible to third parties in any other form without the express written permission of Deuter. Upon terminating the business relationship, these documents and information must be returned to Deuter and/or destroyed at Deuter’s discretion.
9. Place of Fulfillment, Place of Jurisdiction, Applicable Law
9.1 The place of fulfillment for all PERFORMANCES is Deuter’s office and, for payments from the customer, Deuter’s company office in Gersthofen.
9.2 Augsburg shall be the exclusive place of jurisdiction. However, Deuter shall also have the right to pursue legal action against the customer at the court of their business or residential address.
9.3 The laws of the Federal Republic of Germany shall exclusively apply for the contractual relationship, excluding the UN Convention on the International Sale of Goods.
10. Final Provisions
10.1 The rights of the CUSTOMER arising from transactions effected with Deuter may only be renounced with explicit, prior written permission from Deuter.
10.2 Deuter shall reserve the right to change and/or amend these GTC – to the extent it deems necessary – and will immediately provide the CUSTOMER with the appropriate, modified, written version which would then fully replace the existing version of the GTC. This shall accordingly apply for the preceding version of these GTC. All orders made by the CUSTOMER and confirmed by Deuter at the time that the modified GTC were submitted shall be carried out based on the validity of the previous version of the respective GTC.
10.3 Any agreements and arrangements orally made by Deuter and the CUSTOMER must be carried out in writing and require confirmation from Deuter’s management to become legally binding. Written notifications may also be sent via fax, email, or in any other electronic method.
10.4 Should one of the preceding provisions be fully or partially invalid, it shall not affect the validity of the remaining provision(s) or the contract. In this case, Deuter and the CUSTOMER shall expressly undertake to stipulate a provision that comes closest to the intended economic purpose. The same shall apply in case of any loopholes in these GTC.
* These GTC apply as of March 1, 2013. Until then, our existing GTC shall continue to be valid unchanged as of February 1, 2012. Please note that your company’s information shall be automatically stored by our computer system.