General Terms and Conditions of Business and Use

with important customer information

§ 1 Scope of application

1. The GTCs apply exclusively between merchants.
2. The following GTCs shall apply exclusively to all deliveries and services of the Seller. General terms and conditions of the buyer are not recognized by the seller, unless the seller has expressly agreed to their validity in writing. This shall also apply if the Seller performs the services without reservation in the knowledge of terms and conditions that conflict with or deviate from the GTCs.

§ 2 Place of performance, delivery and acceptance

1. Place of performance is the registered office of "finkid GmbH" (Hamburg). 
2. The delivery of the goods takes place ex domestic factory. These shipping costs shall be borne by the Buyer. The Buyer may determine the carrier. The goods are to be shipped uninsured. A shipping notification can be agreed upon.
3. Packaging costs for special packaging are borne by the buyer.
4. Sorted and, in the case of combinations, saleable partial shipments must be made promptly and must be announced in advance. Unsorted ones are only permissible with the consent of the buyer.
5. If, due to the fault of the Buyer, acceptance does not take place on time, the Seller shall have the right, at his discretion, after expiry of a grace period of 12 calendar days to be set, either to invoice the goods with immediate maturity (invoice for arrears) or to withdraw from the contract or to claim damages.

§ 3 Place of Jurisdiction

The place of jurisdiction is Berlin.

§ 4 Content of the contract

1. The delivery of the goods takes place on specific dates (working day or a specific calendar week). All sales are concluded only for certain quantities, articles, qualities and fixed prices. Both parties are bound by this. Commission transactions are not made.
2. Block orders are permitted and must be limited in time when the contract is concluded. The period of acceptance may not exceed 4 months.

§ 5 Samples

1. The Seller shall be pleased to provide samples and selection consignments. These may be charged at separate prices and sent to new customers on a cash on delivery or prepayment basis.
2. When placing an order for the sampled products, a credit note may be issued for the invoiced samples for the price difference between the unit price and the actual sales price for the total quantity.
3. A return or exchange of samples and selection shipments is generally not possible for hygienic reasons and requires our consent. We reserve the right to send samples in the size of our choice.
4. Deviations in the delivered goods in color, surface and strength from the sample provided can only be complained about by the customer if the deviation is to be regarded as substantial in the course of trade. Deviations in color or surface or strength due to raw materials are expressly reserved.

§ 6 Interruption of delivery

1. In the event of force majeure, labor disputes for which one of the contracting parties is not responsible and other operational disruptions for which it is not responsible and which have lasted or are expected to last longer than one week, the delivery or acceptance period shall be extended without further ado by the duration of the hindrance, but by no more than 5 weeks. The extension shall only come into effect if the other party is immediately informed of the reason for the hindrance as soon as it can be foreseen that the delivery or acceptance deadline cannot be met.
2. If the delivery or acceptance in the cases mentioned in Clause 1 has not taken place within the extended delivery or acceptance period, the other contracting party may withdraw from the contract after expiry of a grace period of 12 calendar days to be set.
3. Claims for damages shall be excluded in the cases referred to in Clause 1 if the respective contracting party has fulfilled its obligation pursuant to Clause 1.

§ 7 Period for subsequent delivery

1. After expiry of the delivery period, a subsequent delivery period of 12 calendar days shall be set in motion without explanation. After expiry of this period, the purchaser may withdraw from the contract by written declaration. If the Buyer wishes to claim damages in lieu of performance, he must set the Seller a 4-week period in writing after expiry of the agreed delivery period. The statutory provisions on the dispensability of setting a deadline (§ 281 para. 2, § 323 para. 2 BGB) shall remain unaffected.
2. For stock goods ready for dispatch and NOS goods - "never-out-of-stock" - the subsequent delivery period shall be 5 working days. In the event of non-delivery, the purchaser must be informed immediately. In all other respects, the provisions of Clause 1 shall apply.
3. Prior to the expiry of the subsequent delivery period, claims of the Buyer due to delayed delivery shall be excluded, unless § 8 items 2 and 3 apply.

§ 8 Notice of Defects

1. Notification of defects must be sent to the seller within 12 calendar days after receipt of the goods at the latest in the case of obvious defects. The Buyer shall notify the Seller of hidden defects immediately after their discovery.
2. After cutting or otherwise started processing of the delivered goods, any complaint about open defects is excluded.
3. Minor, technically unavoidable deviations in quality, color, width, weight, finish or design do not constitute a material defect. This shall also apply to deviations customary in the trade, unless the Seller has declared in writing that the delivery is true to sample.
4. In the event of justified notices of defect, the Buyer shall have the right, at the Seller's option, to rectification of the defect or delivery of defect-free replacement goods within 12 calendar days after receipt of the goods. In this case, the seller shall bear the freight costs. If the subsequent performance has failed, the Buyer shall only have the right to reduce the purchase price or to withdraw from the contract, unless § 8 clauses 2 and 3 apply.
5. If the notification of defects has not been made in due time, the goods shall be deemed to have been accepted.

§ 9 Compensation

1. Claims for damages by the Buyer shall be excluded unless otherwise provided for in these Terms and Conditions.
2. The exclusion in Clause 1 shall not apply insofar as liability exists under the Product Liability Act, in the case of intent, gross negligence on the part of owners, legal representatives and executive employees, in the case of fraudulent intent, in the case of non-compliance with an assumed guarantee, in the case of culpable injury to life, limb or health or in the case of culpable breach of essential contractual obligations; essential contractual obligations are those whose performance characterizes the contract and on which the Buyer may rely. However, a claim for damages due to a breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another case mentioned in sentence 1 exists.
3. A change in the burden of proof to the detriment of the Buyer is not associated with the above provisions.

§ 10 Payment

1. The invoice shall be issued on the date of delivery or provision of the goods. A postponement of the due date (value date) is generally excluded.
2. Invoices are payable net within 14 days:
   - In the case of seasonal advance orders (ordered at least 4 months prior to delivery), a payment term of 30 days from delivery is generally agreed. Deviating arrangements must be agreed in writing (e-mail).
   - From the 14th day (in the case of seasonal pre-orders 30th day) default occurs in accordance with § 286 para. 2 No.1 BGB. 
3. If bills of exchange are accepted by the seller instead of cash, check or bank transfer, this requires a separate agreement.
4. Changes in the method of settlement must be announced 3 months in advance.
5. Payments will always be used to settle the purpose indicated in the purpose of use. The settlement of older due debt items plus the default interest accrued on them requires separate notification (by e-mail to c.meyer@finkid.de) or agreement.
6. Decisive for the timeliness of the payment is the final credit entry on the account of the seller. 

§ 11 Payment after due date

1. For payments after the due date, interest of 9 percentage points above the respective base interest rate as defined in § 247 BGB will be charged. In all other respects § 288 BGB shall apply.
2. Before complete payment of due invoice amounts including interest, the Seller shall not be obliged to make any further deliveries under current delivery contracts. The right to assert a claim for damages caused by delay is reserved.
3. In the event of a significant deterioration of the financial situation, such as imminent insolvency or default in payment, the Seller may refuse the performance incumbent upon him in respect of all delivery contracts based on the same legal relationship or withdraw from these delivery contracts after setting a grace period of 12 calendar days. In all other respects § 321 BGB shall apply. § Section 119 InsO shall remain unaffected.

§ 12 Offsetting and retention

Offsetting and retention of due invoice amounts shall only be permissible with undisputed or legally established claims, unless these are claims for damages which are closely related to the Buyer's claim for defect-free performance of the contract.

§ 13 Retention of title

1. The goods remain the property of the seller until full payment of all claims arising from deliveries of goods from the entire business relationship, including ancillary claims, claims for damages and encashment of checks and bills of exchange. The retention of title shall also remain in force if individual claims of the Seller are included in a current account and the balance is struck and acknowledged.
2. If the goods subject to retention of title are combined, mixed or processed by the Buyer to form a new movable item, this shall be done on behalf of the Seller without the Seller being obliged as a result. By the connection, mixing or processing the buyer does not acquire the property in accordance with §§ 947 ff. BGB (German Civil Code) to the new item. In the event of combination, mixing or processing with items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the invoice value of its reserved goods to the total value.
3. Insofar as a central settling agency is involved in the business transaction between the Seller and the Buyer and assumes the del credere, the Seller shall transfer ownership upon dispatch of the goods to the central settling agency with the condition precedent of payment of the purchase price by the central settling agency. The Buyer shall not be released until payment is made by the central regulator.
4. The Buyer shall be entitled to resell or further process the goods only subject to the following conditions:
   
   a) The Buyer may only sell or process the reserved goods in the ordinary course of business, provided that its financial circumstances do not subsequently deteriorate significantly.
   
   b) The Buyer hereby assigns to the Seller the claim with all ancillary rights arising from the resale of the reserved goods - including any balance claims. The Seller accepts this assignment.
   
   c) If the goods have been combined, mixed or processed and the Seller has acquired co-ownership in the amount of its invoice value, it shall be entitled to the purchase price claim in proportion to the value of its rights in the goods.
   
   d) If the Buyer has sold the claim within the scope of genuine factoring, the Buyer shall assign the claim against the factor replacing it to the Seller and shall pass on its sales proceeds to the Seller in proportion to the value of the Seller's rights to the goods. The Buyer is obliged to disclose the assignment to the factor if he is more than 10 days overdue with the settlement of an invoice or if his financial circumstances deteriorate significantly. The seller accepts this assignment.
   
   e) The Buyer is authorized to collect the assigned claims as long as he meets his payment obligations. The authorization to collect shall expire in the event of default in payment by the Buyer or in the event of a significant deterioration in the Buyer's financial circumstances. In this case, the seller is hereby authorized by the buyer to inform the buyers of the assignment and to collect the claims himself. For the assertion of the assigned claims, the Buyer must provide the necessary information and permit the verification of this information. In particular, upon request, he shall provide the Seller with a detailed list of the claims to which he is entitled, including the names and addresses of the purchasers, the amount of the individual claims, the date of invoice, etc. The Purchaser shall also provide the Seller with a list of the claims to which he is entitled.
   
   
5. If the value of the security existing for the Seller exceeds its total claims by more than 10%, the Seller shall be obliged to release securities of its choice to this extent at the Buyer's request.
6. Pledging or transfer of ownership by way of security of the reserved goods or the assigned claims shall not be permitted. The Seller shall be informed immediately of any seizure, stating the name of the seizure creditor.
7. If the Seller takes back the delivery item in exercise of its right of retention of title, this shall not automatically constitute a withdrawal from the contract. The seller can satisfy himself from the taken back goods subject to retention of title by private sale.
8. The Buyer shall store the reserved goods for the Seller free of charge. He shall insure them against the usual risks, such as fire, theft and water, to the customary extent. The Buyer hereby assigns to the Seller his claims for compensation to which he is entitled against insurance companies or other parties liable to pay compensation as a result of damage of the aforementioned kind to the amount of the invoice value of the goods. The Seller accepts the assignment.
9. All claims as well as rights arising from the retention of title to all special forms stipulated in these terms and conditions shall remain valid until full release from contingent liabilities (check-bills of exchange) entered into by the Seller in the interest of the Buyer. In the case of sentence 1, the Buyer shall in principle be permitted to engage in factoring for its outstanding accounts. However, he shall inform the Seller thereof before entering into any contingent liabilities.

§ 14 Applicable Law

The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.