Incorporated with corporate register entry number HRB HRB27566 at Wiesbaden district court.
Statutory representative: Wolf Mayer
Legal address: Gustav-Stresemann-Ring 12-16, D-65189 Wiesbaden (Germany)
Telephone: +49 (0)611 949 190
Fax: +49 (0)611 949 1919
II. Terms of sale / liability
§ 1 General / Purview / Collision
(1) The terms of business stated hereinafter are applicable to all offers, deliverable and performance, as well as other legal transactions of Topcart GmbH with its contractual partners (hereinafter referred to as “customer”).
(2) The terms of business apply exclusively. Topcart shall not accept terms of business of the customer, which deviate from or collide with Topcart ‘s terms of business, unless Topcart has explicitly accepted these in written form. Topcart terms of business apply notwithstanding Topcart, being aware of the existence of deviating or colliding terms of the customer, fulfilling the delivery without reservation.
§ 2 Contract conclusion / Provision for due delivery by our own supplier
(1) Topcart offers in the Internet or other media are invitations without engagement, for the customer to order products from Topcart (invitatio ad offerendum).
(2) Submission of a purchase order for an article offered by Topcart by fax, phone, by letter or by e-mail constitutes a binding offer of the customer for conclusion of a sales contract with Topcart upon receipt of the order by Topcart.
(3) Topcart has the right to accept the customers offer through conveyance of an order confirmation within three business days from the time of order receipt by Topcart. The order confirmation may be in form of letter, fax, e-mail or delivery of the merchandise. Insofar the customer does not receive an order confirmation or delivery of merchandi- se within the aforementioned term, the offer is held to be declined by Topcart.
(4) Topcarts order confirmation includes a provision for due and proper, timely delivery by our own suppliers to Topcart. The aforementioned provision shall only apply in cases where Topcart is not answerable for the non-delivery. The customer shall be informed about the unavailability of the goods forthwith. Any advance payment for unavailable goods shall be refunded to the customer forthwith.
(5) The customer agrees, that invoices and notices from Topcart may also be conveyed per fax or e-mail.
§ 3 Prices
(1) The agreed upon prices are those Topcart prices for goods and services plus the applicable VAT rate, which are valid at the time of receipt of the order by Topcart, unless other written agreements have been made.
(2) All payments are due and payable in full and without deduction, 14 days after the date of invoice. If the customer fails to pay within the 14 day term, he goes into default without further notice.
(3) During the default period the purchase price is subject to interest. The default interest rate for the customer is 8 percentage points above the basic interest rate. The customer bears any incidental collection expenses. Topcart explicitly reserves the right of claims to further damages (§ 288 par. 4 German Civil Code).
(4) In case of default of payment or other arising evidence for declining creditworthi- ness all of Topcart ‘s accounts receivable from that customer shall be due forthwith.
§ 4 Delivery, term of delivery
(1) Deliveries to the customer are made exclusively to the delivery address stated, which must either be a residential or a company address, where the merchandise can be handed over directly to an actual physical person. Shipping to PO boxes or package-drop-off- and pick-up stations is excluded.
(2) Indicated delivery terms are guidelines and thus constituting approximations (circa terms).
(3) If the customer goes into default of acceptance or otherwise violates his obligation to cooperate, Topcart is entitled to claim the damages incurred, as well as any pertinent additional expenditures. Topcart reserves the right to further claims. Insofar the conditions laid out in the aforementioned paragraph are in existence, the risk of accidental perishing or of accidental deterioration transfers to the customer at the time of his going into default of acceptance.
(4) If Topcart is unable to comply with the agreed upon term of delivery, the customer shall be informed and a binding respite shall be given. In case Topcart is unable to comply within the aforementioned respite, the customer has the right to withdraw from the contract. In case of impossibility the customer shall be informed forthwith and
has the right to withdraw from the contract. Claims for damages against Topcart are insofar excluded.
(5) In case Topcart is responsible for default in delivery or impossibility for reasons of malice aforethought or gross negligence, Topcart shall be liable pursuant of the applicable legal regulations. Claims for damages are limited to a scope of damages typically incurred under the aforementioned circumstances.
§ 5 Liability limitations
(1) In cases where Topcart is responsible for personal injury, the liability shall not exceed € 3.000.000,00. In case of damages to property the liability is limited to malice aforethought and gross negligence. The cost of replacement payable by Topcart
shall be limited to a maximum of five times the net purchase price per occurrence
of damage. The aforementioned provision shall also apply in cases where Topcart is responsible for damages from impossibility or default delivery.
(2) In case of loss or damages to data storage/processing media, Topcarts liability
for damages excludes any cost of data recovery. It is in fact the responsibility of the customer to save any data compiled with a copy or otherwise immediately after the
action of compiling or processing the data.
(3) Aforementioned provisions also apply in favor of Topcart team members or auxiliary agents of Topcart. Product liability as covered by the product liability law remains intact.
§ 6 Claims for defects / Guarantee
(1) Topcart is bound to deliver/hand over the merchandise ordered by the customer free of defect.
(2) Proper compliance with the required inspection- and complaint procedures as given in § 377 German Commercial Code is prerequisite to any claims for defects on behalf of the customer.
(3) Insofar the merchandise purchased is defective, the customer is entitled to supple- mentary performance of his choice, either in terms of remedy of the defect or delivery of replacement merchandise free of defects. In case of remedy of defect or replace- ment delivery, Topcart is obligated to bear all required costs, such as transportation costs, travelling costs, labor- or material expenses, insofar the merchandise has not been moved to a location other than the place of fulfillment.
(4) In case of failure in terms of supplementary performance, the customer is entitled to either request a reduction of the purchase price or to withdraw from the contract. In case of minor defects the customer is not entitled to withdraw from the contract.
(5) Pursuant of the pertaining legal regulations Topcart bears the liability for claims for damages made by the customer, if said damages are based on malice aforethought or gross negligence or malice aforethought or gross negligence on the part of Topcarts representatives or auxiliary agents. Insofar Topcart is not being charged with malice aforethought in terms of breach of contract, the liability for damages is limited to a scope of damages typically predictable.
(6) Pursuant of the pertinent legal regulations Topcart is liable insofar Topcart commits a breach of a fundamental contractual obligation. A breach of fundamental contractual obligation exists, if the customer placed his trust and had reason to place his trust in Topcarts fulfillment thereof, while Topcart committed a breach thereof. The liability is limited to the typically predictable amount of damages.
(7) The liability pertaining to culpable damages to life, body or health remains intact.
(8) The period of statutory limitation for claims from defects is one year from the time of delivery / hand-over. The aforementioned equally applies to replacement parts. The statutory period of limitation for claims from defects concerning services performed by Topcart, is one year from the time of acceptance by the customer.
(9) The properties and condition of a contractual subject matter is exclusively based on Topcarts product- or performance-description. Other statements, advertisements or promotions of Topcart are not contractual descriptions of properties and conditions. (10) No claims for defects can be made against Topcart unless Topcart is answerable for the circumstances, and unless the customer has conveyed a written complaint concerning the defects with Topcart without delay. Claims for apparent defects, which are identifiable on an immediate basis, must be made to Topcart in writing within two weeks.
§ 7 Reservation of proprietary rights
(1) The merchandise delivered by Topcart remains Topcarts property until full payment has been received (proviso merchandise). The customer is not entitled to have the proviso merchandise at his disposal. In case of access to the proviso merchandise by third parties, the customer is obligated to inform Topcart without delay. The customer shall be liable for any expenses of annulment of any such aforementioned access ari- sing for Topcart, especially expenses incurred by third party motion to vacate, insofar the third party is not answerable for bearing aforementioned expenses.
(2) The customer is obligated to handle the proviso merchandise for Topcart with the care of a prudent businessman and must provide sufficient insurance against fire, wa- ter, theft and other liability risks at his own expense. The customer agrees to transfer the title to insurance benefits to Topcart, Topcart herewith accepts the transfer of title to insurance benefits.
(3) If the purpose of the contract with the customer is resale of the merchandise purchased from Topcart by the customer within due course of his business operations, notwithstanding paragraph (1) of this chapter, the following provision shall apply: The property of the merchandise delivered to the customer by Topcart transfers to the customer only at that time, when full payment of the purchase price has been received by Topcart. The customer is entitled to resell the merchandise within the course of
due management and administration of his business operation. Until full payment of the purchase price has been received by Topcart, the customer agrees to transfer any claims from resale of the merchandise to Topcart. Topcart herewith accepts the trans- fer. Topcart authorizes the customer to collect the purchase price. The aforementioned authorization is revocable at any time.
§ 8 Offset, transfer of claims
(1) The customer is only entitled to offset claims towards Topcart, if the claims are uncontested by Topcart or if the claims have been legally established as final and absolute. Any right of retention for the customer is limited to claims, which are based on that same contractual relationship.
(2) Intentional transfer of customer claims from a contract with Topcart requires a writ- ten agreement from Topcart. Transfers where the legal transaction, which the claim is based on constitutes a commercial transaction for both parties, are excluded from this provision. Acceptance thereof can only be denied on the grounds important reasons.
§ 9 Applicable law / Place of jurisdiction
(1) Insofar the customer is a general merchant, place of fulfillment as well as place
of jurisdiction shall be the place of business of Topcart. Notwithstanding the aforemen- tioned provision Topcart reserves the right to take legal action against the customer at the district court of his place of residence.
(2) The agreements made between the contractual parties shall be governed exclusi- vely by the Codes of Law of the Federal Republic of Germany. The applicability of any other European or international legal codes or conventions is herewith excluded.