TERMS OF DELIVERY D.W. RETAIL SERVICES GMBH
Article 1: Validity of these conditions
1a. These conditions apply to all agreements of purchase, made by D.W. Retail Services GmbH, with its registered office in Nürnberg and having its business address in Nürnberg, after this we refer to it as D.W. Retail.
1b. Whenever the conditions of the customer and the present delivery conditions coincide, the delivery conditions by D.W. Retail will prevail, unless the delivery conditions of the customer have been accepted in writing by D.W. Retail.
1c. In case and whenever one of these conditions of the General Conditions is in violation with the rules and regulations laid down by the law, these condition will be replaced by the most recent legal conditions that are applicable. This can also apply to only a part of the conditions while the
validity of the remaining conditions still holds.
Article 2: Customer
The term customer refers to the person that has placed the order.
Article 3: Offers and agreements
3a. All offers, quotations and tenders for prices without engagement unless the opposite is mentioned specifically.
3b. Only after confirmation by authorised way on behalf of D.W. Retail of the order placed by the customer or after delivery by D.W. Retail agreed upon in the order, an agreement to purchase has started.
3c. D.W. Retail is authorised to cancel the order without any explanation. This annulment does not give any rights to compensation of damages.
3d. Whenever there is a compromise between two customers, they are individually responsible for the execution of all obligations, resulting from the agreement.
3e. An acceptance of the offer by D.W. Retail, which differs from the offer, is a rejection of the original offer and as a new offer, which does not tie D.W. Retail down. This is also applicable, whenever the acceptance to subordinate points differs from the offer made by D.W. Retail.
3f. In case D.W. Retail has send drawings, pictures or schedules for the purpose of an order or an offer, these drawings, pictures and schedules will remain in possession of D.W. Retail. They are not to be copied or send to other companies. At the request of D.W. Retail they need to be sent back immediately.
Article 4: Prices
4a. Unless specifically mentioned differently prices are in accordance with the offer made by D.W. Retail.
4b. When after the realisation of the agreement and the agreed upon time of delivery, prices of materials, raw materials or parts, salaries or any price determining factors have undergone an alteration, D.W. Retail is authorised to adjust its prices accordingly.
4c. Price-increases, resulting from supplements and/or changes of the order are all at the expense of the customer.
4d. All prices are exclusively of transport costs, insurance-costs, VAT and other charges, which are imposed by the government, unless specifically agreed otherwise and for foreign deliveries this also goes for the custom’s clearance.
Article 5: Annulments
5a. When the customer annuls the whole order or part of it, he is obliged to pay for all costs D.W. Retail has made for the realisation of this order (preparation costs, orders made to the supplier, storage, provision, and so on) as well as the other damages resulting from the annulment.
5b. Goods that are normally not in stock but especially purchased by D.W. Retail for the customer can never be annulled.
5c. If the delivery is delayed for more than 2 months due to force majeur, both the principal and D.W. Retail are entitled to dissolve the contract without this creating any obligation to damage compensation.
Article 6: Delivery and delivery terms
6a. Given delivery terms, unless specifically mentioned otherwise, cannot be regarded as fatal terms.
6b. Exceeding of the delivery term can never authorise a customer to claim damages. When there is an exceeding of the delivery term then D.W. Retail will give notice of this as soon as possible.
6c. When the customer does not accept the ordered goods at the moment they leave the storage of D.W. Retail, both these goods and the risks will be at his expense. This is also applicable when the transport costs are at the expense of D.W. Retail. In those cases D.W. Retail can invoice the customer for
storage costs, costs for the return freight and other costs. The report of the transporter, containing the refusal of the acceptance of the customer is the full proof of the offer of delivery by D.W. Retail. After the delivery the customer is fully responsible for the risks of direct or indirect damages, concerning the goods itself or to other persons.
6d. Unless agreed upon in writing, all deliveries are from the warehouse.
6e. D.W. Retail is authorised to deliver goods C.O.D. (Cash On Delivery)
6f. When a delivery is f.o.b. or from storage the responsibility for the goods is for the customer as soon as the goods leave the warehouse or boat or are loaded onto another ship according to the Incoterms.
6g. D.W. Retail reserves the right to deliver the order in stages.
Article 7: Claims
7a. The customer is obliged to inspect the goods for the presence of defects, immediately after they are delivered. The customer is obliged to inform D.W. Retail of this in writing immediately. When the customer, in case of any visible defects, does not claim for damages within eight working
days after the day of delivery and whenever the complaint is not at the address of D.W. Retail, then the customer is considered to agree with the state of the goods in which they were delivered and thus expires every right to claim damages.
7b. The acceptance of goods without remarks on the waybill is considered proof for the absence of visible defects to the packaging.
7c. Claims concerning defects that are not visible need to be at the address of D.W. Retail in writing no later than six months after receiving the goods. When this is not the case every claim, concerning defects, will expire.
7d. Claims need to be motivated by the customer and relevant proof of this needs to be addressed to D.W. Retail.
7e. Complaints concerning only part of the delivered goods cannot be cause to rejection of all delivered goods.
7f. Small defects that are acceptable in this business are no ground for claims.
7g. Returning goods without the written approval by D.W. Retail is not allowed.
7h. Credit entry of claimed goods will only take place after the claimed goods have been returned to D.W. Retail.
7i. The reimbursement from the returned goods by D.W. Retail will never be more than the invoiced price to the customer for the products concerned. However, the reimbursement can also be limited to the free repair of a damaged product or its replacement, or even the replacement of part of the
product, D.W. Retail will evaluate this.
Article 8: Packaging and transport
8a. D.W. Retail is obliged to pack its goods properly and by doing this carefully, ensure that the goods will arrive at their destination in good shape and under normal circumstances.
8b. Customers are regarded to be in possession of necessary import and/ or payment licences. The absence or withdrawal of these licences does not give right to the customers to not accept the goods in the agreed upon manner. Whenever the goods are not cleared when purchased by D.W. Retail, the customers will legally not be able to annul the order on the grounds of an increase of import duties, VAT and or other duties or taxes. The same thing applies to a change in necessary quality prescriptions and or objections by other persons made on the ground of patents, brands or other duties.
Article 9: Advertising and displaying
9a. When the purchased goods are dated and advertised, mentioning the price, it is not allowed to mention a lower price than the price stated in the purchase agreement.
9b. The customer is obliged to cooperate with and associate with the measures improving purchase, which D.W. Retail tries to accomplish, and about which they will always inform the customer beforehand. These purchase promoting measures can regard advertising of special offers, advertising of bonus prices and price quotations, whenever certain customer prices are maintained on a specific display in the purchase-room of the customer, etcetera.
Article 10: Payment
10a. The claims by D.W. Retail are to be regarded as acknowledgements of debt.
10b. Unless specifically agreed otherwise, payment has to be nett in cash, within fourteen days, at the office of D.W. Retail or on a giro- or bank account mentioned by D.W. Retail.
10c. Without prejudice to the duty of lien, D.W. Retail will be free to demand an advance payment at delivery. The customer is justified to certify this in the form of a bank guarantee or another insurance, all to be judged by D.W. Retail.
10d. When the customer does not pay the claims of D.W. Retail in cash, within the agreed terms, he is regarded to be in omission by law, D.W. Retail is then justified to invoice the customer for 1,5% interest per month over the acknowledgement of debt or part of it, without any proof of default.
10e. Furthermore, D.W. Retail is justified to claim all costs, both legal and non legal besides the acknowledgement of debt and the interest, caused by the non-payment or late payment.
10f. The non-legal costs, with a minimum of Euro 75,– amount to:
For the first Euro 3.000,- 15%
For the further amount to Euro 6.000,- 10%
For the further amount to Euro 14.750,- 8%
For the further amount to Euro 60.000,- 5%
For the further amount 3%
From the single fact that D.W. Retail has insured itself with the help of a third person, the size and obligation to pay the non-legal costs appear.
10g. Payments of claims to D.W. Retail are first of all deduced from the costs, after that, deduced from the interest and last of all deduced from the capital and the current interest.
10h. When the customer has not appealed in writing at the address of D.W. Retail against any invoice and or a review within a week after date of the piece concerned the customer is regarded to agree with the piece concerned.
Article 11: Sole rights of sale
No sole rights of sale are being acknowledged for any country, municipality or district, unless sole rights of sale are agreed upon in writing and when this agreement is confirmed in registered writing between the parties.
Article 12: Property Reservation
12a. Delivered goods remain the property of D.W. Retail until the customer has fully paid the demands of the delivered goods agreed upon between himself and D.W. Retail as well as the compliance of such agreements including interest and costs, which the customer is obliged to pay.
12b. The customer is previous to the referred full payment, not authorised to pawn the goods to a third party or pass on property other than to his company or the intended destination of the goods
agreed upon. The goods may never be laid in grant nor be pawned or borrowed money on in any way or in any name from the company or power of the customer until the customer has fulfilled all his obligations towards D.W. Retail. Breach of these measures will result in the customers having to pay all claims to D.W. Retail immediately, whatever terms of payment. Furthermore, in that case, D.W. Retail has the right to take back all goods from wherever they are, without any authorisation by the customer or any legal instance. The customer is in that case obliged to give access to all rooms that are used by the company, which will, without prejudice, give D.W. Retail the right to demand compensation of damages from the customer.
Article 13: Liability
13a. D.W. Retail is not liable for the costs, which may arise as a direct or indirect
a. Circumstances beyond one’s control, as circumscribed in these conditions.
b. Actions or negligence by the customer or his subordinates, or any other persons who are in the pay of the company by the customer.
c. Improper treatment of the delivered goods by the customer.
13b. Each liability of D.W. Retail for damaged goods is limited to the amount that in that case will be paid by her company’s liability insurance.
Article 14: Suspension and dissolution
If the client does not, not properly or not timely fulfil any obligation that may arise for him from this or from any other agreement concluded with D.W. Retail, as well as in the event of bankruptcy, suspension of payments, shutdown or liquidation of the client’s company, he is deemed to be in default by operation of law and D.W. Retail has the right without any notice of default and without judicial intervention to suspend the execution of the agreement or to dissolve the agreement, either wholly or in part, at its own discretion, without D.W. Retail being liable for any compensation or warranty, without prejudice to its further rights. In these cases any claim D.W. Retail has or will have against the client is immediately due and payable in full. The client is liable for the damage suffered by D.W. Retail, including loss of profit, transport costs and costs of notice of default.
Article 15: Right of lien
Without abatement the legal right of lien D.W. Retail is authorised to keep each good of the customer that is put under its disposal at any title. This will give insurance to the complete payment of all things that D.W. Retail is claiming from its customer unless the customer has insured payment of all claimable things. The right of lien is also applicable in case the customer is going bankrupt.
Article 16: Guarantee
16a. Guarantee for delivered goods will only be given, as long as it is supplied by the suppliers. This does not apply when these guarantee-conditions damage the legal rights of a buyer at a consumer’s sale. Guarantee conditions are applicable in all other cases unless and as long as this is agree upon by both parties in writing.
16b. The guarantee obligation of D.W. Retail expires when the customer has changed or made repairs to the goods, maybe executed by third parties or when the delivered goods are used for other means than the usual ones or when D.W. Retail is the judge of improper use or treatment.
Article 17: Deviant conditions
17a. Whenever conditions, mentioned in a confirmation by the customer, are in violation with the General Conditions, they cannot be recognised, unless they have been accepted explicitly in writing by D.W. Retail.
17b. Whenever the purchase conditions of the customer coincide with present General Conditions D.W. Retail conditions will prevail.
Article 18: Circumstances beyond one’s control
By circumstances beyond one’s control, in this case war, blockades, electricity damages, fire, extreme changes in temperature, nature disasters, export- or import bans, refusal to give import and export licences, confiscation or other government measures and failure by the suppliers of
D.W. Retail or any other means of not complying by the suppliers of their obligations and furthermore any not known cause, that cannot be accounted to D.W. Retail in any written or non-written right, custom or in any fairness.
Article 19: Insurance
The customer can request of D.W. Retail to close off an insurance for the first mentioned, which covers the risks for which D.W. Retail is not liable. D.W. Retail is only obliged to close off an insurance as in the above mentioned and in case D.W. Retail has tied itself down to this in writing.
Article 20: Matters in dispute
All disputes between parties about the interpretation of these purchase conditions will, if proved necessary, be settled by a German judge.
Article 21: Applicable law
To these conditions, as well as on offers and agreements, only the German law and the German International Law is applicable.
D.W. Retail Services GmbH, registration number HRB 74466