1 DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions of sale (‘Conditions’) the following words have the following meanings
‘the Buyer’ the person, firm, body or company purchasing the Goods from the Seller;
‘the Seller’ means Magic Surf Germany GmbH, De-Vos-Straße 20, 25524 Itzehoe, Germany;
‘the Contract’ any contract between the Seller and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
‘the Goods’ the electric surf board goods to be supplied to the Buyer by the Seller (including any part or parts of them).
1.2 In these Conditions references to the singular include the plural and vice versa as the context admits or requires.
1.3 In these Conditions headings are for convenience only and will not affect the construction of these Conditions.
2 APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.2, the Contract will be on these
2.2 Conditions to the exclusion of all other terms and Conditions (including any terms or Conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.3 These Conditions apply to all the Seller’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director or authorised representative of the Seller. Acceptance of delivery of the Goods by the Buyer shall be conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Each order for Goods by the Buyer shall be an offer by the Buyer to purchase the Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be accepted by the Seller until a written acknowledgement of order is issued by the Seller or (if earlier) the Seller delivers the Goods to the Buyer.
2.6 The Buyer shall promptly supply all information and assistance required for the Seller to execute the Buyer’s order.
2.7 All statements (whether written or oral), drawings, photographs, specifications and advertising issued by the Seller and any descriptions or illustrations concerning the Goods made by or on behalf of the Seller before contract, whether in catalogues, brochures, leaflets, price lists or otherwise, are for the purposes of information and guidance only. Unless and until orders are accepted by the Seller on the basis of estimates or quotations, they shall not be binding upon the Seller.
3.1 Dispatch shall be carried out at the main office of the Seller.
The Buyer shall be responsible for and carries the costs of any transport of the ordered electric surf board from the main office of the Seller as well as regarding any customers, fees, or other expenses which may become necessary for the registration of the ordered electric surf board.
The same applies to VAT or other taxes and duties which are payable regarding the purchase of the ordered electric surf board.
3.2 If the ordered electric surf board is delivered to another location on the request of the Buyer, the Buyer shall carry the additional costs arising to the Seller as well as the costs of the resulting additionally required inspection following transport.
3.3 Subject to the other provisions of these Conditions, the Seller will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods.
3.4 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations
(a) risk in the Goods will pass to Buyer (including for loss or damage caused by Seller’s negligence);
(b) the Goods will be deemed to have been delivered; and
(c) Seller may store the Goods until delivery whereupon Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
3.5 The ordered electric surf board shall be dispatched to the Buyer “ready for use”.
4.1 If the Seller notifies the Buyer in writing that the delivery of the ordered electric surf board is not possible to the expected delivery date, the Buyer is obligated to set an extended deadline at least of four (4) weeks in writing to deliver the electric surf board. If the Seller has failed to meet this extended deadline, the Buyer has the right to terminate the contractual agreement in writing.
4.2 In the event that the contract is cancelled pursuant 4.1, the Seller shall refund the partial payment made by the Purchaser (without interest).
5 RISK AND TITLE
5.1 Risk in the Goods shall pass to the Buyer upon dispatch.
5.2 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
5.3 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.1 Unless otherwise agreed by the Seller in writing the price for the Goods shall be the price set out in the Contract.
6.2 All prices quoted are exclusive of VAT, other duties and other expenses which may become necessary for the registration of the Goods with relevant authorities. All sums due to the Seller shall be paid in the currency and to the address stated on the Seller’s invoice.
6.3 If the Seller arranges or undertakes the carriage, freight, insurance or any other transportation costs beyond the point of delivery or, at the request of the Buyer, to a location other than the delivery point referred to on the Contract, such costs shall be paid by the Buyer in addition to the Contract price and shall not affect the provisions of the Contract as to the passing of risk.
7.1 The price for the Goods shall be paid in two instalments:
7.1.1 The first instalment is a down payment payable upon signing the Contract; and
7.1.2 The second instalment is a final payment payable no later than10 days prior to dispatch of the Goods.
7.2 Time for payment shall be of the essence.
7.3 All payments due to the Seller under a Contract shall become due immediately upon termination of any Contract despite any other provision.
7.4 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
7.5 The Buyer shall pay to the Seller, in addition to other amounts payable hereunder, any costs reasonably incurred by the Seller (including without limitation, legal costs and fees of debt collection agencies) in recovering any amounts due to the Seller from the Buyer pursuant to the Contract.
7.6 If the Buyer fails to pay the Seller any sum due pursuant to the Contract (including timely payment of the second instalment referred to in Condition 7.1.2) then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any delivery to the Buyer and the Buyer shall not be entitled to a refund of the down payment referred to in Condition 7.1.1.
7.7 The Seller may appropriate sums received from the Buyer against any debt due to the Seller from the Buyer (under this or any other Contract), irrespective of any purported appropriation by the Buyer.
8 SELLER’S WARRANTY
8.1 The Seller warrants that the Goods will be free from quality defects for a period of 2 years from the date of delivery, (together, the “Seller’s Warranty”).
8.2 The Seller does not warrant that the Goods are fit for any particular purpose or intended use by the Buyer and it is for the Buyer to satisfy itself that the Goods are so fit.
8.3 The Seller shall not be liable for any breach of the Seller’s Warranty unless
(a) the Buyer gives written notice of the defect to the Seller (and, if the defect is as a result of damage in transit, to the carrier) within 14 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Seller is given a reasonable opportunity after receiving the notice to examine such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost for the examination to take place there.
8.4 The Seller shall not be liable for a breach of the Seller’s Warranty if
(a) the Buyer makes any further use of such Goods after giving such notice (as specified in Condition 8.3; or
(b) the defect arises because of natural wear and tear or because the Buyer failed to follow the Seller’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or
(c) damages arise after the passing of risk due to incorrect or negligent treatment, excessive wear or based on special external influences which are not conditions under the contract;
(d) the Buyer alters or repairs such Goods without the written consent of the Seller; or
the defect arises because the Seller followed any drawing, design or specification supplied by the Buyer.
8.5 Subject to Conditions 8.3 and 8.4, if the Goods do not comply with the Seller’s Warranty, the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the Contract price provided that, if Seller so requests, the Buyer shall, at the Buyer’s expense, return the Goods (or the part of such Goods) which are defective to the Seller.
8.6 Subject to Condition 8.7, if the Seller complies with Condition 8.5 it shall have no further liability for a breach of the Seller’s Warranty in respect of such Goods.
8.7 The Seller does not exclude any liability which cannot be excluded as between the Buyer and the Seller under any German legislation.
9 INTELLECTUAL PROPERTY
9.1 The Buyer shall indemnify the Seller against any liability incurred by the Seller in respect of any third party claims arising from dealing by the Buyer in the Goods (irrespective of any negligence of the Seller) except as provided in condition 8.8 or if arising from the Seller’s wilful default.
9.2 The indemnified party shall promptly notify the other of any relevant claim, shall comply with the other’s reasonable requirements to minimise liability and/or avoid further liability, and shall allow the other conduct of any action and/or settlement negotiations, on reasonable terms.
9.3 The Buyer shall not use any trademarks or trade names applied to or used by the Seller in relation to the Goods in any manner not approved by the Seller.
10 LIMITATION OF LIABILITY
10.1 The Seller is liable to the Buyer only for damage caused by intent or gross negligence. Other than in case of intent, the Seller is not liable for indirect damage and consequential damage, in particular, not for loss of profit, interruption in production and/or interruption of operations at the Buyer. Mandatory statutory claims of the Buyer are not affected hereby; this applies, above all, to claims due to harm done to a person’s life, body or health.
10.2 Where the damage is due to the culpable breach of a material contractual duty or to the breach of a duty the discharge of which allows the proper performance of the agreement in the first place and on the fulfilment of which the Buyer can regularly rely and if the Seller is responsible for such breach of duty the Seller will be liable in accordance with the statutory provisions. In the event of simple negligence, however, liability shall be limited to foreseeable and typical damage.
11.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
11.2 The Seller may assign the Contract or any part of it to any person, firm or company.
12 FORCE MAJEURE
The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 45 days, the Buyer shall be entitled to give notice in writing to the Seller to terminate the Contract.
13.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
13.2 If any provision of the Contract shall be held to be illegal, invalid or unenforceable in whole or in part, either under enactment or rule of law, such provision or part shall to that extent be deemed not to form part of this Contract but the legality, validity and enforceability of the remaining provisions of the Contract shall not be affected.
13.3 As far as legally possible, it is agreed for both parties in all disputes and conflicts arising directly or indirectly of the contract jurisdiction should be Hamburg, Germany.
13.4 Notices must be in writing to the Seller’s or the Buyer’s address and shall be deemed delivered on the first working day after sending by hand or (subject to confirmation of transmission) by facsimile.
13.5 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.6 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other Conditions of the Contract.
13.7 This agreement shall be governed by German law excluding the law of United Nations Convention of April 11, 1980 on contracts for the International Sale of Goods.