General Terms and Conditions
Fun4u Sportproduktion GmbH for Corporate Customers
to AGB for private customers
§ 1 Area of Application
(1) The following Terms and Conditions apply exclusively; terms and conditions of customers conflicting with or deviating from our General Terms and Conditions are not accepted, unless explicitly confirmed in writing. Our General Terms and Conditions apply even if we deliver to the customer without reservation when having knowledge of conflicting or deviating terms and conditions of the customer.
(2) All agreements and supplements to agreements between us and the customer for the purpose of executing the contract are only valid if agreed in writing. Deviation from the requirement of the written form must be in writing.
(3) If individual provisions of the following Terms and Conditions should be proven invalid, then this does not affect the validity of the remaining provisions. Invalid clauses are to be replaced in the context of the contractual interpretation by clauses, which come closest to the commercial purpose of the invalid clause.
§ 2 Offers and Conclusion of Contract, Prices
(1) For the contents of the contract the order sent by the customer to Fun4u Sportproduktion GmbH in the version of the order confirmation by Fun4u Sportproduktion GmbH is relevant
(2) The customer is bound to his order received by Fun4u Sportproduktion GmbH for one week.
(3) All prices are quoted excluding VAT (€).
§ 3 Terms of Delivery, Passing of the Risk, Delay in Delivery
(1) If no deviating agreement is reached, then the goods are shipped by Fun4u Sportproduktion GmbH, in completion of the contract, to the delivery address given by the customer, or otherwise to the address of the customer by shipping method determined by Fun4u Sportproduktion GmbH. In case of default in selecting the shipping method, Fun4u Sportproduktion GmbH is only liable in case of intent or gross negligence.
(2) When shipping the goods, the risk of accidental perishing passes to the customer at the point in time when Fun4u Sportproduktion GmbH hands over the goods to the carrier or when the goods leave the Fun4u Sportproduktion GmbH warehouse for shipment, no matter from which place of business of Fun4u Sportproduktion GmbH shipment is affected.
(3) After sending the order confirmation, shipment of the goods is usually made within three business days (Monday through Friday) if in the order confirmation no other delivery date is determined.
If Fun4u Sportproduktion GmbH exceeds the estimated delivery date mentioned in the order confirmation by more than two weeks, then the customer shall set a new deadline of at least 10 working days for Fun4u Sportproduktion GmbH for subsequent performance. If the delivery is not made within the grace period, then the customer is entitled to withdraw from the contract and/or to demand compensation, unless the delivery of the goods has taken place before the declaration of withdrawal or the claim for damages. If the delay in delivery is based on the unavailability of the ordered goods from the commodity source or it turns out that the goods are unavailable after the conclusion of the purchase agreement, then Fun4u Sportproduktion GmbH is entitled to withdraw from the contract. In this case, Fun4u Sportproduktion GmbH undertakes to immediately inform the customer about the unavailability and reimburse any moneys paid by the customer.
§ 4 Terms of Payment, Delivery Abroad
(1) The purchase price is due and payable at the latest upon the delivery of the goods, unless otherwise agreed. Fun4u Sportproduktion GmbH is entitled to deliver the goods cash on delivery. If partial delivery is agreed, then the purchase price is correspondingly partially due.
§ 5 Right of Retention
The customer can only offset against counterclaims that are not disputed by Fun4u Sportproduktion GmbH or that are legally binding. Right of retention not based on the same contract cannot be exercised by the customer.
§ 6 Retention of Title
(1) Fun4u Sportproduktion GmbH retains title to the goods until the purchase price is paid in full. This applies as long as not all other goods of the same order are paid by the customer.
(2) The following provisions apply only for commercial transactions: The customer may neither pledge the delivery items nor assign them as security. In case of seizure, confiscation or other dispositions by third parties he must immediately inform Fun4u Sportproduktion GmbH.
(3) The customer is entitled to resell the reserved goods in the ordinary course of business under the condition that the accounts receivable from the resale pass to Fun4u Sportproduktion GmbH as follows: The customer cedes to Fun4u Sportproduktion GmbH all accounts receivable, including all ancillary rights, which arise from the resale to a purchaser or third parties, irrespective of whether the reserved goods are resold without or after further processing. To collect the debt, the customer is entitled even after the assignment. Authorization by Fun4u Sportproduktion GmbH to collect the accounts receivable itself remains unaffected; however, Fun4u Sportproduktion GmbH undertakes not to collect the accounts receivable as long as the customer meets his payment obligations. Fun4u Sportproduktion GmbH may require the customer to disclose the assigned accounts receivable and their debtors, all information necessary for collection, hand over the related documents and inform the debtor of the assignment. In any case, the aforementioned securities expire as soon as their value exceeds the accounts receivable to be secured by more than 25%.
§ 7 Defects, Duty of Inspection, Notification, and Rejection, Warranty and Limitation
(1) The customer is obligated to inspect the goods for obvious defects, shortages or wrong deliveries, particularly in case of transport damage by the carrier, to check immediately, and notify Fun4u Sportproduktion GmbH. The notice period is 7 days. The receipt of a written (or faxed) complaint at Fun4u Sportproduktion GmbH is relevant. In addition, for merchants § 377 HGB applies.
(2) The buyer undertakes to return the rejected goods in its original or similar packaging for inspection to Fun4u Sportproduktion GmbH. In case of justified and timely complaint, Fun4u Sportproduktion GmbH will refund the shipping charges without delay and remedy the defects by way of subsequent delivery or remedial measures in accordance with § 439 BGB.
Fun4u Sportproduktion GmbH is not obligated to subsequent performance if interventions or modifications have been made to the goods without consent, unless the customer can prove that the defect was not caused by these interventions and changes. In case of refusal of subsequent performance, its failure or its unacceptability for the customer, he has the right to withdrawal or reduction. For damages and reimbursement of expenses of the buyer § 8 of these Terms and Conditions applies.
(3) The limitation period for claims for defects is, if the customer is a consumer in terms of § 13 BGB, 2 years; and if the customer is an entrepreneur in terms of § 14 BGB, 1 year.
(4) The specification of features of goods offered by Fun4u Sportproduktion GmbH on its website, in catalogs, brochures, advertisements, mailings, letters, price lists, pictures and drawings are no quality and durability guarantees, unless they are explicitly as such agreed.
§ 8 Liability for Damages and Reimbursement of Expenses
(1) In case of pre-contractual, contractual or non-contractual violation of obligations, even with incomplete delivery, tort and liability of producers, Fun4u Sportproduktion GmbH is liable for damages and reimbursement of expenses – subject to further contractual or statutory liability requirements – only in case of intent, gross negligence and minor breach of an essential contractual obligation (contractual duty, whose infringement endangers the purpose of the contract). However, the liability of Fun4u Sportproduktion GmbH – except in case of intent – is limited to the damage, which is foreseeable at the conclusion of the contract.
(2) For delay damages Fun4u Sportproduktion GmbH is liable in case of simple negligence only up to the amount of 5% of the agreed purchase price. The same applies for a simple negligent breach of relevant contractual obligations by Fun4u Sportproduktion GmbH.
(3) The disclaimers and limitations contained in paragraphs 1 and 2 shall not apply in the case of assumption of a guarantee for the quality of the goods in terms of § 444 BGB, in case of fraudulent concealment of defects, in case of damage to life, body and health and in case of strict liability according to the Product Liability Act.
(4) All claims for damages against Fun4u Sportproduktion GmbH, for whatever legal reason, shall expire no later than one year after delivery of the goods to the customer, in case of tortious liability from knowledge or grossly negligent ignorance of the reasons for the claims circumstances and the person liable to compensate. The provisions of this paragraph shall not apply – and then the statutory provisions apply – in case of liability for intent and in cases referred to in paragraph 3. Any shorter statutory limitation periods have priority.
(5) If the end user of the goods is a consumer, then for the limitation of the possible right of recourse of the buyer against Fun4u Sportproduktion GmbH legal regulations apply.
§ 9 Place of Fulfilment, Jurisdiction and Applicable Law
(1) If the customer is a merchant or a body corporate organized under public law or a public special fund or his residence is outside the Federal Republic of Germany then for both parties the registered offices of Fun4u Sportproduktion GmbH is the place of fulfilment. For all other contractual partners the statutory agreement applies.
(2) The contractual relationship is governed by German law excluding the UN Sales Convention for the International Sale of Goods (United Nations Convention on Contracts for the International Sale of Goods, dated 11 April 1998 - CISG).
As at June 2008