Terms of service

STANDARD TERMS AND CONDITIONS OF TENGA EUROPE GMBH (“TENGA”) FOR  THE SALE OF GOODS / NON-DISCLOSURE AGREEMENT 

  
1.      PREAMBLE 
1.1     These Standard Terms and Conditions for the Sale of Goods ("Goods") shall apply to all contracts concluded by TENGA only with entrepreneurs (§ 14 BGB) and legal entities, save as varied by express agreement accepted by email or in writing by both parties.  
1.2     The offer, confirmation of order, order acceptance of sale of any Goods covered herein is conditioned upon the terms contained in this instrument. Any terms and conditions of the buyer shall not apply. They shall not become part of the agreement between the parties even if TENGA did not expressly object the respective terms and conditions.   
1.3     These conditions shall govern any future individual contract of sale between TENGA and the buyer even if TENGA did not explicitly point out to them in each individual case. 

 

 2.      ORDERS AND SPECIFICATIONS

2.1     No order submitted by the buyer shall be deemed to be accepted unless and until confirmed by email or in writing by TENGA within 21 days after receipt of the buyer’s order.  
2.2     The quantity, quality and description of and any specification for the Goods shall be those set out on TENGA’s web site and in the TENGA’s quotation (if accepted by the buyer) or the buyer's order (if accepted by TENGA). 
2.3     TENGA reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory requirements. 

 

3.      PRICE OF THE GOODS, PAYMENT TERMS 
3.1     The price of the Goods shall be TENGA’s quoted price or, where no price has been quoted, the price listed in TENGA’s published price list current at the date of acceptance of the order. The price is exclusive of any applicable value added tax. 
3.2     Except as otherwise stated under the terms of any quotation or in any price list of TENGA, and unless otherwise agreed in writing, all prices are on an Ex Works “EXW” (Incoterms 2010) basis. If the buyer requests delivery to the specified location of the buyer, the buyer shall pay the additional delivery cost. 
3.3     Unless otherwise agreed, the buyer shall pay the price of the Goods without any deduction by the due date stated on the invoice following delivery of the Goods. TENGA reserves the right to make delivery subject to advance payment. 
3.4     Payment shall be effected by wire transfer to the bank account indicated in TENGA’s order quotation or confirmation/invoice only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation. 
3.5     If the buyer fails to make any payment on the due date then, without prejudice to any other right or remedy to claim further damage, TENGA shall at his discretion be entitled to: 
a)    subject to a notification rescind the contract or suspend any further deliveries to the buyer;  
b)    charge the buyer interest on the amount unpaid at the applicable default interest rate.  

 

4.     DELIVERY, TRANSFER OF RISK 
4.1      Unless otherwise agreed, "Delivery" of the Goods shall be Ex Works “EXW” (Incoterms 2010). 
4.2  Where delivery of the Goods is to be made in bulk, TENGA reserves the right to deliver up to 3% more or 3% less than the quantity ordered without any adjustment in the price. 
4.3     Unless otherwise agreed, the time of delivery shall be indicated by TENGA upon acceptance of the order. 
4.4     If any agreed time of delivery will be exceeded by TENGA for reasons not attributable to TENGA (nonavailability), TENGA shall inform the buyer without undue delay and indicate the estimated new time of delivery. If the Goods are not deliverable within the new time of delivery or not deliverable at all, TENGA is entitled in fully or in part to rescind the contract; TENGA shall reimburse the buyer without undue delay for payments already made. Non-availability shall be events of force majeure at TENGA, TENGA’s suppliers or carriers, if neither attributable to TENGA nor TENGA’s suppliers or carriers.  
4.5     If the delay is attributable to TENGA and the buyer demonstrably suffered a loss there from, the buyer may claim a compensation as liquidated damages of 0.5% for every completed week of delay, but in no case more than a total of 5% of the price of the supplies which because of the delay could not be put to the intended use. Any further rights for damages shall be excluded. 
4.6    If delivery is delayed at the buyer's request by more than one month after notice of the readiness for dispatch was given, the buyer may be charged, for every month commenced, storage costs of 0.5% of the price of the supplies, but in no case more than a total of 5%. The buyer may prove lower storage costs have been incurred. 
4.7    Risk of damage to or loss of the Goods shall pass to the buyer at the time of delivery or, if the buyer fails to take delivery of the Goods, the time when TENGA has tendered delivery of the Goods. 

 
5.     RETENTION OF TITLE 
5.1     TENGA retains title to the Goods until full payment of the price of the Goods and all other Goods agreed to be sold to the buyer for which payment is then due (“Reserved Goods”).  
5.2      If the buyer fails to pay the purchase price when due, TENGA shall – after payment notification – be entitled to rescind and request possession of the Goods based on the rescission and the retention of title. The buyer shall bear the transportation costs of retaken Goods. 
5.3     Until such time as the title in the Reserved Goods passes to the buyer, the buyer shall hold the Reserved Goods with reasonable care.  
5.4     Until that time the buyer shall be entitled to resell or use the Reserved Goods in the ordinary course of its business. For this case, the following provisions shall apply: 
a)      The buyer hereby assigns to TENGA all claims arising from such resale and transfer of title. TENGA hereby accepts such assignment. As long as the buyer fulfils his payment obligations vis-à-vis TENGA, the buyer remains entitled to collect the claims. 
b)     Insofar as the securities exceed the secured claims by more than ten (10) percent, TENGA shall – upon buyer’s request – release securities to be chosen by TENGA. 
 

6.     WARRANTY
6.1     For the buyer’s warranty claims the legal provisions of the German Civil Code (“BGB”) shall be applicable, unless otherwise established herein. In any case, the legal provisions regarding the delivery of the products in case the end customer is a consumer (§§478, 479 BGB) shall apply. 
6.2     The Goods are deemed to be defective if the Goods do not feature the contractually agreed specifications or are not suitable for the contractually agreed use. TENGA reserves the right to improvement or modifications to the Goods required by statutory provisions. 
6.3     The buyer’s warranty claims are subject to buyer’s obligation to examine the Goods upon delivery and notify in writing any Defects as required by German law (§ 377 of the Commercial Code).  
6.4     If Goods delivered are defective, TENGA shall, at TENGA’s discretion and cost, either replace the Goods free of charge (supplementary delivery) or repair the Goods. In case of supplementary delivery, the buyer shall return the defective Goods within 30 days; otherwise TENGA is entitled to invoice the purchase price for the supplement Goods. If TENGA is neither ready nor able to either repair or replace the Goods within a reasonable period of time, the buyer shall be entitled at the buyer's sole discretion to claim for a reduction of price or rescind the contract. The buyer shall not be entitled to any further rights for damages. 
6.5     The Buyer’s warranty claims shall be excluded, if the defects: 
a)    arise from any design or specification supplied by the buyer;  
b)    are due to improper installation or maintenance, misuse, neglect or any cause other than ordinary commercial application. 
6.6     The warranty period shall be twelve (12) months from delivery.  

 
7.     COUNTERFEIT GOODS
7.1     TENGA prohibits the sale or promotion for sale of illegal copies or counterfeit products. Counterfeit goods contain a trademark, logo or design that is identical to or substantially indistinguishable from the trademark logo or design of TENGA. They mimic the brand features of the product in an attempt to pass themselves off as a genuine product of the brand owner. 
7.2     Simultaneous trading in counterfeit goods entitles TENGA to extraordinary termination of the current contracts with the customer.  
7.3     Damages caused by this breach of contract and the associated loss of sales are to be compensated by the customer.  
7.4     This compensation does not affect TENGA’s rights based on design and trademark law. 

 
8.     LIABILITY 
The liability of TENGA – no matter for what legal cause – shall be limited to any damages caused by TENGA or its vicarious agents or legal representatives with intent, gross negligence or in case of breach of duties essential to the fulfilment of the contractual purpose by ordinary negligence. In such cases of ordinary negligence, TENGA’s liability shall be limited in the amount to typical damage or loss which was foreseeable at the time of conclusion of the contract. This shall not apply to claims for damages under the German Product Liability Act and/or resulting from loss of life, personal injury or damage to the health.  

 
9.      APPLICABLE LAW AND VENUE 
9.1  These Terms and Conditions shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods - CISG). 
9.2   Exclusive place of jurisdiction for all disputes arising out of or in connection with the present Terms and Conditions and/or an agreement governed by the present Terms and Conditions shall be Düsseldorf, Germany.