Toynamics Europe GmbH (Toynamics)
1. General Provisions
1.1. Wherever reference is made to ‘GTC’ in the following provisions, this refers to these General Terms and Conditions of Business and Delivery (GTC) of TOYNAMICS EUROPE GmbH (hereinafter: Toynamics) in Mücke, Germany.
1.2. These GTC form the basis of all legal relationships with Toynamics’ customers. They apply only to businesses within the meaning of Section 310(1) of the German Civil Code (BGB).
1.3. All contracts, orders and agreements – in particular where they amend these GTC – shall only become binding upon written confirmation by Toynamics. All deliveries by Toynamics – including future deliveries – as well as proposals, advice, information and other ancillary services, shall be made exclusively on the basis of these General Terms and Conditions of Business.
1.4. Any conflicting terms and conditions are expressly rejected.
2. Quotations, quotation documents
2.1. Offers made by Toynamics are subject to change without notice, unless they have been confirmed as binding.
2.2. Where orders placed by the customer are to be classified as an offer under Section 145 of the German Civil Code (BGB), Toynamics may accept them within two weeks.
2.3. Toynamics reserves all ownership rights and copyright in offers, illustrations, drawings, data supplied and other documents; these must not be made available to third parties and may only be processed in accordance with the statutory provisions of Sections 69a et seq. of the German Copyright Act (UrhG). Samples forming part of offers must, unless ownership has passed to the purchaser through payment, be returned immediately upon request if the order is not placed.
3. Price, payment, late payment
3.1. Unless otherwise agreed, prices are quoted ex works – free carrier – excluding statutory value added tax, taxes, customs duties and any other levies. Where such taxes, customs duties or levies are incurred, these shall be paid separately by the customer.
3.2. If deliveries and/or services take place more than four months after the conclusion of the contract, Toynamics reserves the right to adjust prices appropriately should cost reductions or increases occur, in particular due to wage rises or changes in material prices. Evidence of such changes shall be provided to the customer upon request.
3.3. Unless otherwise agreed, invoices are payable in advance.
3.4. Freight charges, services, handling charges and other costs are generally payable without deduction.
3.5. Any change to the due date requires an express written agreement. The granting of payment terms means that, although payment is due, the customer shall not be deemed to be in default until the payment term has expired.
3.6. Toynamics shall only accept negotiable bills of exchange if this has been expressly agreed. Where bills of exchange or cheques are accepted, the debt shall only be discharged upon final honouring and crediting to a Toynamics bank account. Discount charges and all costs and expenses arising from the honouring of the bill of exchange or cheque shall be borne by the customer. In the case of bills of exchange and cheques in foreign currency, the amount credited to the Toynamics account shall be the sole determining factor for the extent to which the liabilities have been settled. The honouring of cheques as partial payment shall not constitute a waiver of claims, even if the cheque amount corresponds to a substantial part of the liabilities.
3.7. In the event of failure to meet payment deadlines, interest on arrears shall be charged at a rate of 8 per cent above the base rate, subject to a minimum of 12.0 per cent per annum. For each reminder issued in addition to that required due to the delay, Toynamics may claim damages of EUR 10.00 per reminder. Toynamics remains entitled to prove that the loss was higher, whilst the customer remains entitled to prove that the loss was lower.
3.8. In the event of late payment or if the claim is jeopardised by a deterioration in the customer’s creditworthiness, Toynamics is entitled to declare its claims due and payable or to demand the provision of security. This applies irrespective of the term of any bills of exchange. Toynamics is also entitled to carry out any outstanding deliveries only against advance payment or upon provision of security. In particular, the customer’s creditworthiness is deemed to have deteriorated if a trade credit insurance policy taken out by Toynamics is terminated or if the insurer no longer provides, or would no longer provide, cover against the customer in future. In the event that the customer’s creditworthiness and financial position deteriorate significantly—in particular, if the insurer under a trade credit insurance policy taken out by Toynamics refuses to provide cover—Toynamics is entitled to demand immediate payment of all claims, whether due or past due.
4. Prohibition on Assignment and Set-off
4.1. Toynamics may set off any claims it has against any counter-claims made by the customer. Toynamics shall be free to decide against which counter-claim the set-off is to be made.
4.2. The Customer may only assign rights and claims arising from contracts to third parties with Toynamics’ prior consent. This shall not apply if the Customer is a trader within the meaning of the German Commercial Code (HGB) and the legal transaction giving rise to the claim constitutes a commercial transaction for the Customer (Section 354a, first sentence, HGB). In this case, however, the assignment of the claim shall not be binding on Toynamics. Rather, Toynamics may continue to make payments to the previous holder of the claim with debt-discharging effect. This shall also apply if the assignment of the claim is notified to Toynamics or if it has otherwise become aware of it.
4.3. The customer shall only be entitled to set-off rights if their counter-claims are undisputed, have been acknowledged by Toynamics or have been established by a final and binding judgement, provided that such a judgement or title is also recognised or enforceable under German law. The customer is only authorised to exercise a right of retention to the extent that their counterclaim arises from the same contractual relationship.
5. Packaging
Transport packaging and all other packaging in accordance with the Packaging Ordinance will not be taken back; pallets are excluded from this. The customer is obliged to arrange for the disposal of the packaging at their own expense.
6. Transfer of risk, trade terms, dispatch
6.1. Risk passes to the customer upon handover to the forwarding agent or carrier, but at the latest when the goods leave the premises. The Incoterms 2000 shall apply to the interpretation of the trade terms.
6.2. Where – notwithstanding Clause 3.1 of the General Terms and Conditions of Business (ALB) – it has been agreed that Toynamics shall dispatch the goods carriage paid to the destination, the choice of means of transport and route shall be at Toynamics’ discretion. Toynamics shall then also appoint the forwarding agent and the carrier.
6.3. Goods reported as ready for dispatch must be collected immediately; otherwise, Toynamics is entitled, at its own discretion and at the customer’s expense and risk, to store them and to invoice them as delivered ex works.
6.4. If the customer is in default of acceptance or culpably breaches other obligations to cooperate, Toynamics shall be entitled to claim compensation for the resulting loss, including any additional expenses. We reserve the right to make further claims.
6.5. Toynamics is entitled to make partial deliveries.
7. Delivery time, delay in delivery
7.1. The agreed delivery times shall apply only provided that all details of the order have been clarified in good time and that the customer has fulfilled all its obligations in good time, such as providing artwork, provision of the necessary official documents, in particular any customs and import certificates, the opening of a letter of credit, or the payment of an agreed deposit or advance payment. They refer to the time of dispatch from the delivery works and shall be deemed to have been met upon notification that the goods are ready for dispatch, if the goods cannot be dispatched on time through no fault of Toynamics.
7.2. If Toynamics is prevented from fulfilling its obligations due to unforeseen events or force majeure affecting Toynamics or its suppliers, and which Toynamics is unable to avert even with the care that may reasonably be expected under the circumstances of the case, e.g. war, acts of state, civil unrest, natural disasters, accidents, official orders, other operational disruptions and delays in the delivery of essential operating materials or raw materials, the delivery period shall be extended by the duration of the hindrance and a reasonable start-up period.
7.3. If an impediment renders delivery by Toynamics impossible or unreasonable, Toynamics may withdraw from the contract. The customer shall have the same right if acceptance of the goods is unreasonable for them due to the delay. In addition to the cases set out in Clause 7.2 of these General Terms and Conditions, strikes or lockouts shall in all cases be deemed to be impediments for which Toynamics is not responsible within the meaning of these General Terms and Conditions.
7.4. Toynamics shall be liable in accordance with the statutory provisions insofar as the underlying contract of sale is a fixed-date transaction within the meaning of Section 286(2)(4) of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). Toynamics shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which Toynamics is responsible, the customer is entitled to claim that their interest in the further performance of the contract has ceased.
7.5. Toynamics shall furthermore be liable in accordance with the statutory provisions insofar as the delay in delivery is attributable to an intentional or grossly negligent breach of contract for which Toynamics is responsible; any fault on the part of Toynamics’ representatives or vicarious agents shall be imputed to Toynamics. Where the delay in delivery is not due to an intentional breach of contract for which Toynamics is responsible, Toynamics’ liability for damages shall be limited to the foreseeable, typically occurring loss.
7.6. Toynamics shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which Toynamics is responsible is due to a culpable breach of a material contractual obligation; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring loss.
7.7. Furthermore, in the event of a delay in delivery, Toynamics shall be liable for each full week of delay in the form of a lump-sum compensation for delay amounting to 0.5 per cent of the value of the delivery, up to a maximum of 5 per cent of the value of the delivery.
7.8. The Customer’s other statutory claims and rights remain unaffected.
8. Defects, limitation period, installation and assembly instructions
8.1. The customer must inspect the goods immediately upon receipt for any defects and to ensure they are in good order. Obvious defects must be reported to Toynamics within 14 days of the goods’ arrival.
8.2. Any defects in the goods that become apparent thereafter must be reported to Toynamics without delay. Once the customer has accepted or taken delivery of the goods, no claim may be made for defects that were obviously detectable at the time of acceptance or delivery.
8.3. Toynamics may, at its discretion, either repair or replace defective goods up to two times (subsequent performance).
8.4. Standard commercial tolerances regarding dimensions, quantity, weight, quality, colour, etc. do not constitute grounds for complaint. As a general rule, only Toynamics’ product description shall be deemed to have been agreed as the quality of the products.
8.5. Should subsequent performance fail, in particular following the fruitless expiry of a reasonable period of grace set by the customer, the customer may withdraw from the contract or demand a reduction in price.
8.6. Claims for defects shall become time-barred one year after delivery of the goods, or at the latest fifteen months after notification that the goods are ready for dispatch.
8.7. In the event of rectification or replacement, Toynamics shall be liable for claims arising from defects in the same manner as for the original delivery; such claims shall become time-barred one year after the completion of the rectification or replacement.
8.8. Any further rights arising from defects – in particular contractual or non-contractual claims for compensation for damage not caused to the goods themselves (consequential damage resulting from defects) – shall only apply to the extent set out in Clause 11 of the General Terms and Conditions of Business (ALB). This exclusion of liability shall not apply in the event of fraudulent concealment of the defect or where the goods lack a warranted characteristic, if the purpose of the warranty was specifically to protect the customer against the damage incurred.
8.9. The above provisions shall apply mutatis mutandis where goods other than those agreed or reduced quantities are delivered.
8.10. All claims for defects are subject to the condition that Toynamics’ written assembly and installation instructions are followed, as are the specifications regarding the intended use and restrictions on use.
9. Manufacturer’s recourse, Section 478 of the German Civil Code (BGB)
9.1. If the customer is notified of a defect by its buyer, the customer is obliged to notify Toynamics of this defect without delay, but at the latest within 7 days. If the customer fails to give such notice, the goods shall be deemed to have been approved.
9.2. Section 476 of the German Civil Code (BGB) shall not apply in the case of manufacturer’s recourse in the relationship between the customer and Toynamics if the goods were stored by the customer for longer than 6 months prior to resale.
9.3. The scope of the Customer’s rights in the event of manufacturer’s recourse is determined in accordance with Clause 11 of the General Terms and Conditions of Sale (ALD).
9.4. Toynamics is entitled, at its discretion, to reimburse expenses incurred in connection with manufacturer’s recourse in the form of credit notes for goods.
10. Retention of title, goods subject to retention of title
10.1. The goods delivered remain the property of Toynamics (goods subject to retention of title) until all claims, in particular the respective outstanding balances, to which Toynamics is entitled against the customer within the framework of the business relationship have been settled. This means that ownership does not pass to the Customer upon handover of the goods, but that Toynamics retains ownership of the goods until all outstanding amounts have been paid in full to Toynamics. In the event of the customer’s breach of contract, in particular in the event of late payment, Toynamics is entitled to take back the goods. Such repossession does not constitute a withdrawal from the contract.
10.2. Any processing or treatment of the goods subject to retention of title by the customer is carried out on behalf of Toynamics as the manufacturer, without, however, imposing any obligation on Toynamics. The processed or treated goods shall be deemed to be goods subject to retention of title.
10.3. Where the Customer processes, combines or mixes the goods subject to retention of title with other goods, Toynamics shall be entitled to co-ownership of the new item in the proportion of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If Toynamics’ title is extinguished as a result of combination or mixing, the Customer hereby assigns to Toynamics, with immediate effect, the rights of ownership to which it is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title, and shall hold them in safekeeping for Toynamics free of charge. Toynamics’ co-ownership rights shall be deemed to be goods subject to retention of title.
10.4. The Customer may only resell the goods subject to retention of title in the ordinary course of business, on its normal terms and conditions, and provided that it is not in arrears with any payments due to Toynamics, provided that the Customer agrees a retention of title with its customers and purchasers and that the claims arising from the resale pass to Toynamics in accordance with Clause 10.5 of the ALB. The Customer is not authorised to dispose of the goods subject to retention of title in any other way. The use of the goods subject to retention of title to fulfil contracts for work and services or contracts for work and materials shall also be deemed a resale.
10.5. The Customer’s claims arising from the resale of the goods subject to retention of title are hereby assigned to Toynamics. Where the claim arising from the resale is set off against a current account, this shall also apply, to the same extent, to the respective balance claims. The assigned claims shall serve as security for the goods subject to retention of title to the same extent. Toynamics accepts the assignment.
10.6. Any bills of exchange received by the Customer on account of the assigned claims are hereby assigned to Toynamics, which accepts them. The Customer shall hold the documents in safekeeping on behalf of Toynamics.
10.7. If the goods subject to retention of title are resold by the customer together with other goods not supplied by Toynamics, the claims arising from the resale or the respective balance claims shall be assigned to Toynamics in the proportion of the invoice value of the goods subject to retention of title to the invoice value of the other goods. In the event of the resale of goods in which Toynamics holds co-ownership shares in accordance with Clause 10.3 of the ALB, Toynamics shall be assigned a portion of the claim corresponding to its co-ownership share. Toynamics accepts the assignments.
10.8. The customer remains authorised to collect the assigned claim. This does not affect Toynamics’ right to collect the claims itself. Toynamics undertakes not to collect the claims as long as the customer meets their payment obligations from the proceeds received, does not fall into arrears and, in particular, no application has been made for the opening of insolvency proceedings or suspension of payments has occurred. However, should this be the case, Toynamics may demand that the customer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and notify the debtors of the assignment.
10.9. Under no circumstances is the customer entitled to assign the claims to any other party. This also applies to factoring transactions; the customer is not permitted to enter into such transactions, even on the basis of the authorisation to collect payments. Toynamics is, however, prepared to consent to factoring transactions on a case-by-case basis, provided that the proceeds therefrom are ultimately paid to the customer and the satisfaction of Toynamics’ claims is not jeopardised.
10.10. In the cases specified in Clause 3.8 of the General Terms and Conditions of Business (ALB), Toynamics is also entitled to prohibit the processing and treatment of, as well as the resale of, the goods subject to retention of title. In such cases, and in the event of a breach by the customer of the obligations under clause 10.4 of the ALB, Toynamics may also demand the return of the goods subject to retention of title at the customer’s expense, excluding any right of retention.
10.11. The Customer hereby authorises Toynamics to enter and drive onto its premises and business premises, and to take possession of the goods subject to retention of title. Taking possession shall not be deemed a withdrawal from the contract. Marking the goods for Toynamics shall be deemed to constitute taking possession. The taking of possession may be carried out by Toynamics’ authorised representatives. Toynamics’ authorised representatives must provide proof of their authority by means of a written power of attorney.
10.12. If the value of the existing security exceeds the total secured claims by more than 10 per cent, Toynamics shall, at the Customer’s request, be obliged to release security of its choice to the extent of such excess.
10.13. The customer is obliged to notify Toynamics immediately of any attachment or other encroachments by third parties (e.g. a landlord’s lien).
10.14. Insofar as a retention of title cannot be agreed with the customer under the applicable law, a charge shall be deemed to have been agreed in respect of the goods, the processed goods or the customer’s claim against third parties. A lien means that the goods serve as security for Toynamics until the purchase price has been paid in full and may therefore only be further processed or resold by the customer with Toynamics’ consent.
11. Liability/Compensation
11.1. Toynamics’ liability is limited to damages arising from culpable injury to life, limb or health, and, in all other respects, to damages arising from intentional or grossly negligent breaches of duty, as well as from culpable breaches of material contractual obligations, insofar as this jeopardises the fulfilment of the purpose of the contract.
11.2. The same limitation of liability applies to Toynamics’ legal representatives and vicarious agents.
11.3. Except in the case of damage resulting from a culpable breach of duty causing death, personal injury or damage to health, and other intentional or grossly negligent breaches of duty, liability shall be limited in amount to compensation for foreseeable damage typical of the contract, up to a maximum of the contract value.
11.4. Claims that are mandatory under law remain unaffected.
12. Place of performance, jurisdiction, applicable law
12.1. The place of performance is Toynamics’ registered office.
12.2. The place of jurisdiction for all legal disputes, including proceedings relating to bills of exchange and cheques, is the registered office of Toynamics. Toynamics may also bring proceedings against the customer at the customer’s general place of jurisdiction. Under German procedural law, Toynamics is also entitled to assert claims for payment in summary proceedings.
12.3. All legal relationships between Toynamics and the customer shall be governed exclusively by the law of the Federal Republic of Germany.
12.4. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
12.5. In the event of any discrepancies between the German and English versions of the ALB/Terms and Conditions, the wording of the German ALB shall be exclusively binding.
13. Data Protection, Schufa Clause
13.1. The customer agrees that the order data may be stored and processed in accordance with the provisions of the Federal Data Protection Act, insofar as this is necessary for invoicing, customer service and the performance of the contract.
13.2. The Customer consents to Toynamics transmitting data relating to the contractual relationship to Schufa-Holding AG or a recognised trade credit insurance provider, and to Toynamics requesting information about the Customer from Schufa-Holding AG, insofar as this is necessary to safeguard Toynamics’ legitimate interests.
14. Severability clause
Should any individual provision of the ALB or any provision within the ALB be or become invalid, this shall not affect the validity of the remaining provisions of the ALB or any other provisions within the ALB.