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General Terms and Conditions of Sale as of 09/2021

 

§ 1   Validity

  • All deliveries and offers from Nostalgic-Art Merchandising GmbH (hereinafter "Seller") are made exclusively on the basis of these General Terms and Conditions of Sale. The conditions of sale only apply in wholesaling to entrepreneurs and only for online offers. These are an integral part of all contracts concluded by the Seller with its contracting parties (hereinafter also referred to as “Buyer”) for the deliveries offered by the Seller.
  • Terms and conditions of the Buyer or third parties shall not apply, even if the Seller has not separately rejected their validity in individual cases. Even if the Seller refers to correspondence which contains terms and conditions of the Buyer or of third parties or makes mention of such, this does not suggest any agreement to the validity of such terms and conditions.

§ 2   Offer and conclusion of contract

  • All offers of the Seller are subject to change and are non-binding, provided they are not explicitly marked as binding or contain a certain term of acceptance. The Seller may accept orders or commissions within fourteen (14) days of receipt by means of an order confirmation. If there is no order confirmation, the invoice shall be deemed to be the order confirmation
  • The legal relationship between the Seller and the Buyer shall be solely governed by the purchase contract concluded in writing, including these General Terms and Conditions of Sale. It fully reflects all agreements between the contracting parties relating to the contract. Verbal assurances by the Seller before the conclusion of this contract are not legally binding and oral agreements by the contracting parties are replaced by the written contract, unless it is expressly stated therein that they will continue to be binding in each case.
  • The Seller reserves the right of ownership and/or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, prospectuses, catalogues, models, and other documents and aids made available to the Buyer. Without the express consent of the Seller, the Buyer may not make these objects or their content accessible to third parties, may not have them used or reproduced, either by itself or by third parties.

§ 3   Prices and payment

  • The prices apply to the scope of delivery set out in the order confirmations. If there is no order confirmation, the invoice shall be deemed to be the order confirmation. The prices are in EUR from the Seller's registered office plus packaging, the statutory value added tax, customs duty for export deliveries as well as fees and other public charges. If, in exceptional cases, a delivery does not take place from the Seller's registered office, the Seller will inform the Buyer of the price difference that may result from this.
  • For new customers, delivery takes place pari passu against prepayment by bank transfer or–after prior approval by the Seller–after receipt of the goods by direct debit or transfer. In addition, the payment terms and conditions individually agreed with the Buyer shall apply.
  • Invoice amounts are due immediately without deduction.
  • If the customer falls into default on the payment of the purchase price, interest is to be paid on the total purchase price at nine percentage points above the respective base rate for the duration of the delay. Insofar as the Seller can be shown to have suffered higher damage caused by the default, the Seller is entitled to assert this.
  • The offsetting against counterclaims of the Buyer or withholding of payments against such claims is permitted only insofar as the counterclaims are undisputed or have been legally upheld or arise from the same contract under which the delivery in question was made. In particular, offsetting due to claims for defects remains possible.
  • The Seller shall be entitled to assign the claims from its business relations with the Buyer after the due date.
  • If the Buyer defaults on a payment obligation, all remaining claims from other contracts shall be due for payment immediately.

 

§ 4   Delivery and delivery time

  • Deliveries shall be made at the currently applicable prices and the associated shipping conditions.
  • Deadlines and periods for deliveries given by the Seller are at all times only approximate, unless a fixed period or deadline has been explicitly accepted or agreed. If shipping has been agreed, delivery dates and deadlines refer to the time of transfer to the forwarder, haulier, or other third party assigned to transport the goods.
  • If no fixed delivery time has been agreed, a delivery time of approximately 7-10 days shall apply.
  • If collection has been agreed, the purchase items must be accepted on the day of acceptance agreed as binding or–if such has not been agreed–within 7 days of receipt of the notification of readiness.
  • The Seller shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that could not be foreseen at the point in time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring material or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining the necessary regulatory approvals, official measures or missing, wrong or late delivery by suppliers), for which the Seller is not responsible. As far as such events make delivery or service difficult or impossible for the Seller and the obstruction is not only of temporary duration, the Seller is eligible to withdraw from the contract. In the event of temporary hinderances, delivery or service deadlines shall be extended, or the delivery or service dates postponed by the duration of the hindrance plus a reasonable start-up period. Insofar as the Buyer, as a result of the delay, cannot be expected to accept the delivery of goods or provision of service, it may withdraw from the contract by means of an immediate written notification to the Seller.
  • The Seller shall be entitled to make partial deliveries, especially if the items are not in stock and the partial delivery is reasonable for the Buyer.

 

§ 5   Place of performance, shipping, packaging, transfer of risk

  • The place of fulfilment for all obligations arising out of the contractual relations is the Seller’s registered head office, unless determined otherwise.
  • The mode of shipping and the packaging are subject to dutiful discretion of the Seller.
  • The risk is transferred to the shipper, carrier or other third parties designated to make the delivery to the Buyer at the latest on handover of the delivery item (with the decisive element the start of loading). This shall also apply if part deliveries are made. If shipping or transfer is delayed dues to circumstances whose cause lies with the Buyer, the transfer of risks to the Buyer takes place on the day when the delivery item is ready for shipping and the Buyer has been informed about this by the Seller.

§ 6   Warranty, material defects

  • The warranty period is one year after delivery or, if acceptance is required, one year after acceptance. This term does not apply to compensation claims of the Buyer that arise from damage to life and limb, product liability or from intentional or grossly negligent breaches of obligations on the part of the Seller or his vicarious agents, which shall each become time-barred in accordance with the legal provisions.
  • The delivered items must be carefully inspected immediately after delivery to the Buyer, or the third party designated by it. The items are deemed to be approved by the Buyer concerning visible defects or other defects visible in the course of a prompt and thorough examination, if the Seller does not receive a written notice of defect within seven (7) working days after delivery. With regard to other defects, the delivery items are considered to have been approved by the Buyer if the notice of defect is not received by the Seller within seven working days after the point in time at which the defect became visible; however, if the defect was already visible at an earlier point in time during normal use, this earlier point in time is decisive for the start of the complaint period. The Buyer must document the incoming goods, the performance of the incoming goods inspection and their exact times. The documentation must be handed over to the Seller on request in order to enable it to prove compliance with its own defect reporting obligations to its third-party supplier. At the Seller's request, a defective delivery item shall be returned to the Seller carriage free. If the notice of defects is justified, the Seller will reimburse the costs of the cheapest method of dispatch; this does not apply insofar as the costs rise because the delivery item is located somewhere other than the place of use as determined.
  • In case of material defects to the contractual items the Seller is obliged and authorised to remedy the defect or provide replacement delivery within a suitable period, at its discretion. In the case of failure, i.e. impossibility, unreasonableness, refusal, or unreasonable delay of the repair or replacement delivery, the Buyer can withdraw from the contract or reduce the purchase price appropriately. Furthermore, it shall be entitled to claim damages.

 

§ 7   Liability for damages due to fault

  • The liability of the Seller for compensation, regardless of the legal grounds, in particular due to impossibility of fulfilment, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, insofar as it is a matter of fault, is limited in accordance with this § 8.
  • The Seller shall not be liable in cases of simple negligence of its institutions, legal representatives, employees or other vicarious agents, insofar as it is not a breach of contractual obligations.
  • If, in accordance with § 8 (2), the Seller shall be liable for damages on their merits, this liability is limited to damages which the Seller foresaw as a possible consequence of a breach of contract when concluding the contract, or that the Seller should have discovered during due diligence. Indirect loss and consequential damage due to defects of the delivery item are only liable for compensation if such damage can be typically expected and when the delivery item is used in conformity with its intended purpose.
  • The above exclusions and limitations shall apply to the same extent in favour of bodies, legal representatives, employees and other agents of the Seller.
  • The limitations of § 8 shall not apply to the Seller's liability for deliberate actions, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

§ 8   Retention of title

  • Until full payment is made for all present and future claims from the purchase contract and from an ongoing business relationship (secured claims), the Seller retains title to the goods sold.
  • The goods subject to retention of title may not be pledged to third parties or assigned as collateral until the secured claims have been paid in full. The Buyer must notify the Seller in writing without delay if a request is made to open insolvency proceedings, or if third parties gain access (e.g. seizures) to the goods belonging to the Seller.
  • If the Buyer acts in violation of the contract, especially in the case of non-payment of the purchase price due, the Seller shall be entitled to demand the return of the goods on grounds of retention of title and to withdraw from the contract. The demand for return of the goods does not automatically constitute the Seller's declaration of withdrawal from the contract; rather, the Seller shall be entitled to assert our claim to the same and reserve the right to their return. If the Buyer does not pay the purchase price due, the Seller may assert these rights only if it has previously set the Buyer an appropriate deadline for payment to no avail or if setting such deadline may be waived according to the provisions of law.
  • The Buyer is authorised, until further notice pursuant to (ii) below, to sell the goods subject to retention of title or process them further in the ordinary course of business. If this is the case, the following provisions shall apply.
  • The Buyer shall assign to the Seller as security the entirety of its payment claims against third parties arising from the resale of the goods. The Seller hereby accepts such assignment. The Buyer's obligations in para. 2 above shall also apply in respect of the assigned claims.
  • In addition to the Seller, the Buyer shall also be authorised to collect the claim. The Seller undertakes not to collect the claim as long as the Buyer meets its payment obligations, there is no other deficiency in the Buyer's performance capacity and solvency and the Seller does not claim a right to retention of title pursuant to para. 3. However, if this is the case, the Seller may request that the Buyer discloses to the Seller the assigned claims and the debtors in that respect, that it provides all the necessary information, surrenders the appertaining documents and informs the debtors (third parties) of the assignment. In addition, the Seller shall be entitled in this case to revoke the authority of the Buyer to resell and process the goods under retention of title.
  • If the realisable value of the securities exceeds the claims of the Seller by more than 10%, the Seller will release securities of the Seller's choosing, upon request by the Buyer.

§ 9    Right of return

  • Returns may only be made with the consent of the Seller. In this case, the return period is 30 days from the day on which the Buyer or a third party named by it, who is not the carrier, has taken possession of the goods.
  • The return must be made carriage paid to the following address:

 

Nostalgic-Art Merchandising GmbH In der Kanonenhalle

Am Borsigturm 156

13507 Berlin

 

  • The voluntary right of return does not exist for specially made or specially procured goods.
  • In addition, our valid return conditions apply, available at […].

 

§ 10 Data protection

  • You can find our data protection declaration under the following link: https://www.na-shop.de/datenschutz

§ 11 Final provisions

  • If the Buyer is a merchant, a legal entity under public law or a special fund under public law, or if it does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between the Seller and the Buyer shall be Berlin or, at the option of the Seller, the registered office of the Buyer. In these cases, however, Berlin shall be the exclusive place of jurisdiction for lawsuits against the Seller. Mandatory statutory provisions on exclusive jurisdictions shall remain unaffected by this provision.
  • Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing in order to be effective. Electronic transmissions, especially via fax or email, shall be sufficient to meet the requirement of the written form, as long as a copy of the signed declaration is transmitted.
  • The business relationship between the Seller and the Buyer shall be governed by the law of the Federal Republic of Germany only. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
  • If the agreement or these General Terms and Conditions of Delivery contain loopholes, these shall be deemed to be filled by the legally effective arrangements which the parties would have agreed, if it had known of the loophole, in order to meet the business objectives of the contract and the purpose of these General Terms and Conditions of Delivery.