General terms and conditions
Azuba Handels GmbH
1. Scope of applicability, choice of goods: The following Terms and Conditions shall apply: No other Terms and Conditions from the buyer shall be part of the contract. Azuba Handels GmbH (hereinafter referred to as Azuba) does not need to explicitly state its discrepancy to these other Terms and Conditions, even in the event of purveyance. The client is liable for his choice of ordered goods and their intended outcome, provided that the customer’s order does not originate from a separately remunerated counselling service followed by recommendation of purchase in text form by Azuba.
2. Choice of products, confirmation of order: The choice of products provided for by Azuba is revocable at any time and only to be understood by the client as an invitation to treat. The buyer is bound to the issued order of purchase (offer to buy) of those products, that Azuba usually has in stock (stock goods). The contract shall come into existence when Azuba accepts the order by notification or by delivery of the ordered goods.
The purchase agreement shall come into existence upon purchase order made by the client. The acceptance of the contract takes place only when Azuba acknowledges receipt of the order. This procedure is required to protect minors, so that minors shall not be able to initiate a contract.
We reserve the right to carry out a verification of identity when products, that should be legally not be at the disposal of minors, are being ordered. This verification takes place just once and applies to further orders coming from the same client. No order shall be possible without declaration of the correct date of birth.
All information on brochures, advertisement and so forth, including the prices, are not binding and shall constitute for the customer just a description of the conditions and quality of the goods. Azuba explicitly reserves the right to change models, designs or labelling in deliveries within the scope of a contract, and as long as these changes are not of fundamental kind, the aim of the contract is marginally restricted and the interests of the buyer are not unacceptably aggrieved.
3. Prices: Prices shall be understood as purchase prices in any of our business premises or agencies. Cargo and other special packing charges shall be additionally satisfied by the buyer. Prices for mail orders shall be understood for delivery within Berlin comprising normal packaging. This rule shall also apply when commercial operations are to be carried out with registered traders and in case the effective delivery can only be carried out after more than four months have elapsed due to Azuba’s slight fault or to a circumstance exclusively within its sphere of responsibility. Separate rules shall apply for goods to be supplied in containers. Incoterms 2000 rules are understood hereby to be agreed upon.
4. Passing of the risk, delivery time, damages caused by delay, partial delivery: Assumption of the goods shall take place in Azuba’s commercial premises. The delivery of the goods may also take place somewhere else upon client’s request at his own risk and cost. Agreed-upon delivery periods shall only be guaranteed as long as the buyer complies with his responsibilities (such as agreed payment in due time, exhibit of documents for the purpose of provisions, etc.). Supplementary change requests from the buyer could lengthen proportionately delivery periods. The term of delivery shall be observed before expiration date, if the buyer is informed about the shipping of the goods or their readiness for shipment. In case Azuba does not meet the delivery date, the buyer will communicate a reasonable final deadline in text form to Azuba. This final deadline will be effective upon receipt at Azuba. The buyer has the right to withdraw from the contract in case the final deadline is not met by Azuba. The right to withdraw from the contract shall remain unaffected. Total or partial withdrawal from the contract is only admissible for the buyer as long as the already provided partial performance can be proven to be of no interest to the buyer. Regarding agreed-upon deadlines and time limits, Azuba shall not be held liable for delivery or service delays due to force majeure, in particular, war, riots, intervention of high authorities, measures taken within a collective action, strikes or lockouts, shortage of raw materials or energy, as well as unavoidable shutdown or transport disruptions, such as blackouts, fire, water inrush or other atmospheric conditions with impact on the transportation. These rules shall also apply in case the aforementioned conditions affect Azuba’s purveyors or this purveyors cannot supply Azuba, despite the contracts that should have fulfilled the needs derived from the agreement arranged between Azuba and the buyer. In such cases Azuba is authorized to delay the delivery or the service for the duration of the hold-up plus a start up period, or to withdraw partially or completely from the contract due to the unfulfilled part of the contract.
In case Azuba is to be held responsible for the failure to comply with the agreed-upon time limits and deadlines, or overdue these, the buyer shall be entitled to compensation for damage caused by culpable delay that shall amount to 0.5% for each complete month of delay, but at most 5% of the value of the part of the delivery or service affected by the delay. Azuba is liable according only to art. 15 of these terms and conditions.
Azuba is authorized to deliver partially at all times and as long as this is acceptable for the buyer.
5. Default in acceptance, claim for damages: In the event the buyer is in default of acceptance, after the settlement and no fulfilment of an extension of time of no less than 10 days, Azuba shall be entitled to withdraw from the contract or claim for damages for non-performance. In the latter case Azuba shall claim 15% of the purchase price as compensation without need of further proof. The buyer must provide counter evidence that minor damage has resulted. Possible claims for actual higher damages shall remain expressly unaffected.
Instead of the assertion of the aforementioned rights, and after the settlement and the expiration of a time limit, Azuba is also entitled to ulterior dispose of the goods and to deliver those to the buyer in due but extended time limit. If, at the request of the buyer, shipping of the goods is delayed for longer than a month after showing readiness for dispatch, Azuba is entitled to charge the incurred storage expenses to the buyer’s account.
6. Payment, set-off and right of retention: All invoices are immediately payable without deduction. In mail-order shops the payment is due in cash, by cash on delivery or delivery of the goods.
The buyer shall be entitled to the set off of payments when the counterclaim is undisputed or legally binding.
Any retention of payment by the buyer are excluded when based on counterclaims originating from other contractual relationships.
7. Default of payment: In the event of late payment, Azuba is entitled to charge at least the interest rate due in case of overdraft and calculated by the creditor, or at a rate of at least 5%-points in case of consumers and in all other cases at a rate of at least 8%-points above the ECB base rate. Interests are payable immediately.
In addition to bank charges, Azuba shall be entitled to charge a lump sum of 30 Euro for the processing of cancelled checks or returned debit notes, provided that Azuba has no greater damages to report or the buyer has smaller damages to report.
8. Reservation of title: Until the conformance to all requirements, included outstanding balance claims, to which Azuba shall be in the present or future entitled against the buyer and/or its group company, the following securities shall be granted to Azuba, to which on demand and at its own choice shall Azuba give release as far as their value exceeds in 20% to those of the requirements. The goods remain in the title of Azuba. Processing and adaptation are to be carried out by Azuba as manufacturer, but do not constitute any obligation for Azuba.
In case Azuba’s title or shared title extinguishes due to the combination of property, it shall be here agreed upon that the title or shared title of the buyer on the thing owned jointly shall be transferred to Azuba proportionally to its value (the basis of which shall be the invoice value). The buyer shall keep the title or shared title of Azuba free of charge and diligently.
As long as the buyer has not incurred in delayed payment, he shall be entitled to manipulate and realineate the goods subject to retention according to trade rules. Pledge and other kinds of chattel mortgage are however forbidden. The buyer cedes Azuba, already and to its full extent, all claims originating from the resale, or any other cause in law (such as claims against insurance or from unlawful acts), of the goods subject to retention. Azuba shall authorized the buyer upon revocation to collect on its name the assigned receivables in favour of Azuba. Cancellation shall only take place if the buyer does not fulfil the obligations derivates from the contract with Azuba. The buyer shall upon request disclose the assignment and provide Azuba with all the information and documents.
When the buyer does not resale cash on the spot, he transfers Azuba’s reservation of title to his buyers to such an extent so that Azuba keeps the property until full payment, according to art. 455 German Civil Code. In the case a third party, in particular, bailiffs, has access to the goods subject to retention of title, the purchaser shall point out Azuba’s property and shall inform Azuba about this at short notice.
The buyer shall be responsible for all the expenses and damages resulting from that access. The buyer is liable to insure the goods subject to retention of title against theft, destruction, damage and other infringements. If the conduct of the buyer is in breach of the contract, specially default payment, Azuba shall be entitled, at buyer’s expense, to take back the goods subject to retention of title or, if applicable, to demand for the claim for return the buyer might have against third parties.
According to the aforementioned rules, Azuba is entitled to take back the goods under retention of title. the buyer grants Azuba and its designees the irrevocably right to access his commercial premises during the customary opening times, and in applicable with a vehicle in order to collect the goods subject to retention of title.
9. Withdrawal: In addition to the already described cases, Azuba is entitled a right to withdrawal in case the period of time specified by Azuba is not respected and the buyer breaches, thus, the contract jeopardizing its purpose.
10. Right of the buyer in case of defects: For legal business established with consumers, legal provisions shall be applied. The buyer’s right to claim for damages conforms to art. 15 and following of these Terms and Conditions. In case of already used goods, the limitation period for the right of the buyer is a year in case of defects. In case of buyers who are not consumers, the limitation period is also a year, or six months in case of already used goods, starting from the date of receipt.
Subsequently a manufacturer warranty shall possibly be applied, whereas the settlement of a warranty, eventually with costs, might be carried out without additional warranties or warranty claims against Azuba.
In transactions with fully qualified merchants the buyer must be obliged to check the delivery for damages due to transportation and other incidents immediately upon receipt and to notify Azuba in text form about any damages or losts giving detailed description of the circumstances. The Rules contained in sections 377 and 378 of the Commercial Code remain applicable and supplementary. In such a case, the delivered and damaged goods shall be kept in the same condition they were when the defect was detected and ready for a inspection to be carried out by Azuba.
In case the operating instructions refer to the problem-analysis and fault isolation to be carried out on delivery goods, the buyer shall proceed according to these before asking Azuba for the removal of defects. Before shipping back the goods, the defectiveness shall be detected and discussed with Azuba.
In case the buyer is a fully qualified merchant or legal person under public law, the returned goods shall be delivered without costs. Azuba may charge or specifically account for a processing flat-rate of 50 Euros (incl. VAT) in case of an unjustified or uncompleted reshipment of the rejected goods. Such processing flat-rate does not apply in case not yet six months have passed between the sale and delivery of the goods by Azuba. In case this sum is to be charged, the buyer shall give counterevidence to proof that he has suffered minor damages. In case the delivered goods are defective or result defective due to manufacturing or product deficiencies within the period of limitation of a year, Azuba shall deliver at her own choice a refund or a repair. The buyer is entitled to two repairs. Warranties are only available as long as they are described to as warranties in text form in the description of the goods.
In case the rectification of defects or the delivery of the replacement fails to meet the period allotted, upon presentation of the legal premises may the buyer choose alternatively between mitigation of the fees or rescission of the contract.
During the implementation of the removal of defects the limitation period will be suspended.
Furthermore, the removal of defects does not cause the extension of the limitation period regarding the good, as long as no particular circumstances appear, that could suspense or disrupt the limitation period. A precautionary replacement of parts of appliances are to be carried out for the removal of reported defects and without acknowledgement of warranty claim in another way (art 212 German Civil Code). Azuba shall be deemed responsible for the consequential harm caused by a defect due to non-compliance of its warranty, insofar the aim of such warranty was to protect the buyer against the occurred damages. Liability fails in case of atypical and not foreseeable damages, as far as Azuba has not act deliberately or with gross negligence, or personal damages have occurred.
In the case Azuba’s business and maintenance instructions are not followed, changes in the products are undertaken, parts are being changed or used materials, that do not conform with the original specifications, are being applied, or intervention in positions no expressly authorized is carried out, the claim warranty does not apply as far as from defects result from this behaviour.
11. Cost estimate: Azuba is bound to the cost estimates within the following four weeks starting from the date of their delivery. Azuba does not assume any liability for the accuracy of the cost estimate. The buyer is to be notified without delay in case of substantially exceeding of the estimate. Costs are to be calculated based upon the price list available at that given time.
12. Calculation of orders: In the case the buyer requires the collection or delivery of the object of the contract, these will be carried out at his own expense and risk. Liability according to paragraph 15 remains unaffected.
13. Security right: In case of claims originated from the contract, Azuba has a right to security on the client’s objects which Azuba has manufactured or adjusted, and that through such manufacturing or adjusting process have become part of the property of the client. This right of security applies as well to those claims still opened and originating from preceding contracts between Azuba and the client.
14. Storage costs, custody, realization: In case goods have not been collected within four weeks since the request to collect, once the time limit is expired, Azuba may require appropriate storage charges. In case the collection of goods does not take place within three months after the request to collect, obligation to further storage no longer applies and, therefore, any liability due to negligent damage or destruction. A month before the expiry of the period time the client will be informed of the threat of sale of the goods.
Once the period time limit is expired, Azuba is entitled to sell the goods at current market price.
15. Liability: Azuba shall be held fully liable of intent and gross negligence. In the case of breach of essential obligations of the contract and impossibility of performance, Azuba shall be held also liable in case of slight negligence, yet limited to the typical and foreseeable damages. In other cases Azuba is liable for slight negligence for claims originating from art. 311 (2) German Civil Code. In case of defect in objects sold or manufactured, damage claims from the client are precluded. Hereof are not included claims due to damages to life, body and health in case Azuba is responsible of the breach of duty, and other damages resulting from the breach of duty with intention or gross negligence. Claims based on the breach of essential obligations are not to be included; in such case Azuba is liable only for typical and foreseeable damages. The aforementioned limitations of liability shall also apply in case of assistance from Azuba on compliance and performance.
16. Distance selling: In the case the contract with the client is subject to arts 312b and 312f German Civil Code, the contract can be revoked within a two-week time limit without prior reason. Revocation must be in text form. The revocation is also accomplished with the sending back of the goods; to comply with the time limit, dispatch in good time is sufficient.
The client shall bear the costs due to the return of the goods if the value of these is inferior to 40.00 Euros. This shall also apply if the value of the goods is higher and the client has not yet satisfied either the price or a due instalment. No costs at all shall be paid in case the returned goods do not correspond to those ordered.
If Azuba has begun the provision of the service with the express approval of the client before the end of the revocation period or if the client himself occasioned the provision, the right of revocation is also extinguished.
No right of revocation shall be granted in case of delivery of goods produced by Azuba according to customer specification or tailored to the personal needs of the client.
Client’s complaints are to be delivered to the following address:
Matthias Kohn
Paul-Heyse Str.1 10407 Berlin
We refer specifically to the warranties and conditions of the warranties specified in paragraphs 10 to 13 of these Terms and Conditions.
17. Place of performance, jurisdiction and applicable law: For merchants, public legal entities or specials fund under public law, the place of performance is the place of business or office where the entering into the contract started. Berlin Courts are competent in this case, jurisdiction of the local courts of Charlottenburg shall apply.
The Law of the Federal Republic of Germany is applicable on all disputes arising from this contract except for the UN Convention on the International Sale of Goods (CISG), the Uniform Commercial Code (UCC) und the Uniform Act on Purchase Transactions.
In case some of the provisions are not to be applied, the remaining provisions will continue to be effective.
Updated on 11/2004
Azuba Handels GmbH