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SPORT IMPORT GMBH TERMS AND CONDITIONS

§ 1 Validity of the terms and conditions
1. The delivery, service and offers of the seller shall be exclusively affected on the basis of these business terms and conditions. These shall thus also apply to all future business relationships even if they have not been expressly agreed again. At the latest upon receipt of the goods or service these terms and conditions shall be deemed accepted. We shall not recognize terms and conditions of the buyer which are contrary to or differ from our business terms and conditions.
2. Variations of these business terms and conditions shall only be valid if the seller confirms this in writing. The waiver of this written requirement must itself be agreed in writing.

§ 2 Offer and conclusion of contract
1. Insofar as nothing to the contrary is agreed the offers of the seller are subject to change without notice and are not binding. The declarations of acceptance and orders must be confirmed by the seller in text form e.g. by e-mail or fax, in order to be legally valid. The same shall apply to additions, changes or collateral agreements. If the seller does not refuse acceptance within 4 weeks of receipt of the order, confirmation of the same shall be deemed granted.
2. The information, drawings, illustrations, technical data, descriptions of weight/measurements and services contained in brochures, catalogues, circulars, advertisements, price lists or in the documents relating to the offer are not binding insofar as they have not been expressly described in the order confirmation as binding.

§ 3 Prices
1. The prices plus the respective statutory value added tax shall be those stated in the order confirmation of the seller. Additional deliveries and services shall be calculated separately.
2. The prices shall be understood as ex warehouse in the event that nothing to the contrary is agreed.
3. Cash discounts must be agreed beforehand and confirmed on the invoice. If a cash discount is agreed payment must be made within the period stated in the invoice insofar as the discount is deducted. The date on which payment is received on the seller's account shall be the deciding factor.
4. The seller is entitled to demand payment of the purchase price immediately irrespective of any period for payment if the buyer does not comply with the payment terms or if circumstances become known which raise questions about the creditworthiness of the buyer, especially if a cheque is not paid or the buyer suspends the payments. This shall also apply if the seller has previously accepted bills of exchange or cheques. Furthermore the seller is entitled if the above-mentioned circumstances apply to demand payments in advance or provision of security.
5. All payments shall be made directly to the seller. Without written authorization from the seller representatives are not entitled to receive money or other methods of payment. Payment is deemed to have been made once the seller can make use of the sum of money. In the case of cheques payment is made once the cheque has cleared. Payments made after the settlement term mentioned on the invoice are subject to penalties. An interest rate applies, which is 8 percentage points above the base interest rate per annum. The penalties are due without any reminder.
6. The parties shall only be entitled to rights of set-off if their counterclaims have been found to be legally enforceable, uncontested or are acknowledged by us. Furthermore they are only authorized to exercise a right of retention insofar as the counterclaim is based on the same contractual relationship.
7. Insofar as there are more than six months between the conclusion of the contract and the agreed and/or actual delivery date the seller's prices, valid as at the date of delivery or order shall apply. If these exceed the initially agreed prices by more than 10% the buyer shall be entitled to withdraw from the contract.
8. In the event of non-performance of the contract by the buyer, withdrawal from the contract of sale by the seller, e.g. under § 455 BGB [German civil code], the seller shall be entitled to demand 20% of the purchase price plus the costs incurred for packing and freight as well as return freight costs as compensation. In an individual case the contracting parties may prove a smaller or higher claim.

§ 4 Liability for defects
1. Claims for defects by the buyer require that the latter has duly met his obligations under § 377 HGB [German commercial code] to inspect and notify delivered goods.
2. Otherwise the statutory provisions shall apply subject to the following: a) The seller shall choose whether the subsequent performance shall take the form of repairing the defect or the delivery of a new defect-free item. b) Insofar as the seller is not accused of a deliberate breach of contract, the liability for damages shall be limited to foreseeable damage typically incurred. c) The statutory limitation period regarding claims for defects for new items shall be 12 months from the transfer of risk. d) Liability for defects does not apply to used items. The statutory limitation period in the event of recourse for delivery under §§ 478, 479 BGB is not affected. This is 5 years from the delivery of the defective item.

§ 5 Time of delivery and performance
1. The dates and deadlines stated by the seller are not binding insofar as nothing has been expressly agreed in writing to the contrary.
2. Delays in delivery and performance on the basis of force majeure and events which make it extremely difficult or impossible for the seller to deliver – this also includes subsequent difficulties in procuring materials, operational disruptions, strike, lockout, lack of transportation, official directives etc. even if they occur to the suppliers of the seller or their subcontractors – shall not be the responsibility of the seller even in the case of a binding agreement on deadlines and dates: they entitle the seller to postpone the deliveries or performance by the period of obstruction plus a reasonable lead time or on account of the part not yet fulfilled to withdraw partly or completely from the contract.
3. If the obstruction lasts longer than three months the buyer shall be entitled after setting a reasonable deadline to withdraw from the contract in respect of the part not yet fulfilled.
4. If the seller is late with delivery the extended deadline to be set by the buyer shall be 6 weeks. The period shall commence when the notification of the extended deadline has been received by the seller.
5. Unless unreasonable for the buyer, the seller is entitled at any time to make partial shipments and partial services.
6. In the event of the necessity of recovering debts due to us within the scope of extrajudicial or judicial collection any discount granted shall not apply.

§ 6 Prohibition of Resale outside the EEA+
Goods may only be resold within the European Economic Area and Switzerland.

§ 7 Extent of liability
1. Compensation claims against the seller are excluded insofar as the latter cannot be accused of deliberate intent or gross negligence. This limitation of liability shall not apply in the event of loss of life, physical injury and damage to health nor if material contractual obligations are infringed.
2. Insofar as our liability for damages is excluded or restricted, this shall also apply in respect of the personal liability for damages of our office workers, employees, staff, representatives and vicarious agents.

§ 8 Transfer of risk
1. Insofar as there is nothing to the contrary in the order confirmation, delivery shall be agreed as „ex works”. Risk shall pass to the buyer as soon as the shipment has been handed over to the person effecting the transport of the same or depending on use has left the seller's warehouse.
2. The risk of accidental loss shall also be borne by the ordering party even if delivery is effected by the factory's own vehicles.
3. If dispatch becomes impossible without the seller being culpable or is delayed at the request of the buyer or if he does not accept the goods, the risk shall pass to the buyer upon notification that the shipment is ready for dispatch.
4. Packaging for transport and all other packaging in accordance with German packaging legislation will not be taken back except for pallets. The buyer is obliged to ensure disposal of the packaging at his own cost. The seller shall cover the delivery with a transport insurance policy, the costs incurred in this respect shall be borne by the buyer. Claims arising from the transport insurance shall pass to the buyer upon transfer of risk. Should the buyer not want any transport insurance, he must advise the seller of this in writing.

§ 9 Reservation of title
1. Until all claims have been met (including all current account claims) to which the seller is entitled now or in the future arising from any legal basis against the buyer, the following securities shall be granted to the seller which he shall release upon request at his discretion insofar as their value continues to exceed 10% of the claims.
2. The goods shall remain the property of the seller. Processing and reconstruction shall always be affected for the seller as manufacturing, but without any obligation for him. If the (co) ownership of the seller lapses by [this] combination, it is hereby agreed that the (co) ownership of the buyer of the resulting item shall pass to the seller in proportion to the value of the goods (invoice amount). The buyer shall keep the (co) ownership of the seller free of charge. Goods in respect of which the seller has (co) ownership shall be hereinafter described as goods supplied under reservation of title.
3. The buyer is entitled to work on and sell the goods supplied under reservation of title within the proper course of business as long as he is not in default. Pledging and assignments of security are not allowed. Claims (including all current account claims) arising from resale or another legal basis (insurance, unauthorized action) in respect of the goods supplied under reservation of title shall be hereby assigned in full by the buyer to the seller as security. The seller shall irrevocably authorize him to collect the claims assigned to the seller for the account of the same in his own name. This collection authorization can only be revoked if the buyer does not duly meet his payment obligations.
4. If a third party has access to the goods supplied under reservation of title the buyer shall advise of the title of the seller and shall inform the latter immediately.
5. In the event of conduct by the buyer which contravenes the contract – especially payment default – the seller shall be entitled to take back the goods supplied under reservation of title or if applicable, demand assignment of the claims of the buyer against third parties for restitution of the property. The withdrawal as well as seizure of the goods supplied under reservation of title by the seller is not considered a withdrawal from the contract.

§ 10 Applicable law, place of jurisdiction, severability
1. The law of the Federal Republic of Germany shall exclusively apply to these business terms and conditions and to the complete legal relationships between seller and buyer irrespective of the legal foundation, with the exception of the regulations of German conflict of law (IPR); the validity of the UN CISG is excluded. English shall be the language of negotiation and contract.
2. Oldenburg (i. Oldenburg) shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, we are however entitled to take legal proceedings against the buyer at his place of general jurisdiction.
3. Unless the order confirmation states otherwise, the place of performance shall be the business address of the seller.
4. Should a provision in these business terms and conditions or a provision within the scope of other agreements be or become invalid, then the validity of all other provisions or agreements shall not be affected.

§ 11 Data protection
1. We are entitled to store and process the data relating to the buyer received within the scope of the business relationship whether this originates from the buyer directly or from third parties. We promise to comply with the provisions of the German Federal Data Protection Act. A separate notice on data storage is not required.

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