XEO Int. LTD.
General Conditions of Sale
As of: 4 July 2014
1.1. These General Conditions of Sale are the basis for all our deliveries and services. For consumers in terms of sec. 13 German Civil Code these General Conditions of Sale shall not apply.
1.2. The conditions laid down in our order confirmations or in case we do not submit an order confirmation the conditions laid in our invoices as well as these General Conditions of Sale shall prevail.
1.3. Deviating terms and conditions of the Customer shall not apply, unless we have agreed to their validity in writing.
1.4. Unless expressly provided otherwise in an offer, our offers are always subject to change. Orders are only binding for us if we confirm them in writing or fulfil them through delivery.
2. Delivery and Passing of Risk
2.1. Our delivery obligation shall be subject to the correct and timely delivery by our supplier. This reservation is only valid in case that we have concluded a congruent hedging transaction with our supplier.
2.2. Unless expressly otherwise stated in the order confirmation or invoice, we deliver "ex-works (EXW) Hanover (Incoterms 2010)".
2.3. In case of delayed delivery, the Customer has to set a reasonable grace period of two weeks on us.
2.4. We are entitled to make partial deliveries, which account for at least 25% of the order volume.
3. Prices and payment
3.1. The purchase price arises from our order confirmation, or where no such order confirmations is send from our invoices. If there is no order confirmation and / or invoice, our general price list is valid in the current version. Except as expressly otherwise specified in our order confirmation and / or invoice, all prices are "ex works (EXW) Hanover (Incoterms 2010)".
3.2. As far as not differently provides in our order confirmation and / or invoice the purchase price is immediately payable net cash (without any deductions).
3.3. Deduction of discount requires a separate written agreement.
3.4. Our prices are without VAT.
3.5. The purchase price payment shall only be deemed effected when the amount has been cleared on one of our accounts.
3.6. If there are reasonable doubts as to the performance of the Customer, especially in a delay in payment, we are entitled to revoke already granted credit terms and to demand payment in advance or security for further deliveries.
3.7. The Customer may only offset its own claims against our claims and exercise retention of goods, provided that his claims or the retention claims of the Customer are either established by final judgment or recognized by us.
4. Term of delivery
4.1. Our delivery period begins with the dispatch of our order confirmation or invoice, if no order confirmation is issued. Delivery times do not represent fixed dates, unless otherwise agreed in writing.
4.2. If the Customer is in default of acceptance or culpably violates other cooperation obligations, we are entitled to demand compensation for damages incurred by us, including any additional expenses. Further claims or rights are reserved.
4.3. Compliance with our delivery obligation requires the timely and proper fulfilment of the obligations of the Customer. The defence of breach of contract is reserved.
4.4. Our delivery period is extended accordingly in case of labour disputes, strikes and lockouts, as well as the occurrence of unforeseen events that are beyond our sphere of the will, eg breakdowns, delays in the delivery of essential raw materials and components, provided that the obstacles are of considerable influence on the completion or delivery. Further, we are not responsible if these obstacles occur during an already existing delay.
5. Pictures of our products and our company logo
5.1. If the Customer wants to use pictures of our products or our company logo in its promotional material, catalogues, or the like (the "Promotional Materials"), he undertakes to ensure to use only images that we provide to the Customer free of charge upon request. The Customer may not modify this material.
5.2. The relevant pages of the Promotional Material that contain pictures of our products or our company logo may only be published by our Customers, if we have agreed in writing in advance of the relevant publication. The approval shall be deemed granted if we have not objected in writing within one week after provision of the advertising material foreseen for publication.
6. Retention of title; other security interests
6.1. Purchased goods we own, and which are intended according to the contract for transfer of ownership to the Customer remain our property until payment of all our claims - of whatever legal reason - against the Customer under the business relationship. In case of payment by check or bill the retention of title applies until payment of all checks and bills. For current accounts, the retention of title is deemed as security for our balance claim.
6.2. The Customer may resell the goods in the ordinary course of business; however, he already now assigns by security all claims in the amount of the agreed final invoice amount (including any applicable sales tax) from the resale against his customers or third parties, regardless if the purchased goods are sold without or after processing. We accept the assignment.
6.3. The Customer is authorized to collect the claims assigned to us. Our authority to collect the claim ourselves remains unaffected; however, we undertake not to collect the claim as long as the Customer meets his payment obligations. However, the Customer is not entitled to pledge the reserved goods or the assigned claims to third parties or transfer by way of security.
6.4. The authorization to resell the goods pursuant to para. 6.2 and the direct debit authorization pursuant to para. 6.3 can be revoked individually or jointly by us, if the Customer is in breach of its obligations under the respective contracts of sale, especially if:
6.4.1. the Customer is in default with a payment obligation;
6.4.2. the Customer suspends its payments or the Customer or a third party files an application to start insolvency proceedings regarding the Customer;
6.4.3. an enforcement measure in the movables of the Customer is unsuccessful or against him a proceedings regarding affirmation in lieu of an oath was started;
6.4.4. for other reasons a significant deterioration occurs in the financial circumstances of the Customer, endangering fulfilment of our claims from the business relationship;
6.4.5. the Customer, despite warning and a threat of revocation, does not satisfy a fundamental contractual obligation.
6.5. The Customer can claim a redemption of the revocation according to clause 6.4, if and to the extent he ensures and proves that a threat to our security interest is precluded.
6.6. The Customer is obliged to provide us on request information on the debtors of assigned claims and under the conditions of para. 6.4 inform the debtors of the assignment.
6.7. If we practice our rights described in sec. 6.4 all claims secured by the retention of title against the Customer immediately become mature. When reasons of equity so require, the early maturity shall be discounted appropriately.
6.8. Should the Customer act in breach of contract, in particular default in payment, we are entitled to take back the products and the Customer is obliged to hand them over. The assertion of the retention of title and the seizure of our products by us shall not constitute a withdrawal from the contract.
6.9. The Customer has to immediately inform us of any seizure or any other impairment of our property and security interests in the goods by third parties. Our costs incurred due to the defence of third party interference are to be reimbursed by the Customer, in case the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to sec. 771 Code of Civil Procedure.
6.10. In case insolvency proceedings in light of the Customer starts after reception of the goods or their resale, we may, without prejudice to our property rights according to sec. 47 Insolvency Act, demand segregation in accordance with sec. 48 Insolvency Act to the extent the purchase price from the resale has not been assigned to us under sec. 6.2.
6.11. If the retention of title is not effective by the law of the state in whose area our products are located, the next effective legal safeguards according to the law of said state shall apply. The Customer will take all measures that are required for approval and conservation of such a right.
6.12. The Customer is obliged to carry out the necessary measures to establish or maintain the retention of title - or an equivalent security interest under the law of his country of establishment or any deviating country of destination - and to prove said measures upon demand. Non-compliance constitutes a fundamental breach of contract.
6.13. The Customer is obliged to proceed with goods under retention of title at his own expense with the diligence of a prudent businessman and to insure them against the usual risks of warehousing. He already assigns his claims under the insurance contracts to us. We accept the assignment.
6.14. The processing or transformation of the goods by the Customer is always done for us. If the goods are processed with other objects not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the purchased goods (final invoice amount including VAT) to the other processed objects at the time of processing. In light of the product created by processing the rules regarding the product delivered under retention of title shall apply mutadis mutandis.
6.15. If the goods are inseparably mixed with other goods not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the purchased goods (final invoice amount including VAT) to the other processed items at the time of mixing. If the mixing occurs in such a way that the object of the Customer is to be regarded as the main item, it is agreed that the Customer transfers proportional co-ownership to us. The Customer shall keep such sole ownership or co-ownership for us.
6.16. We will release the securities entitled to us at the request of the Customer insofar as the realizable value of our securities exceeds the secured claims by more than 20%; the choice of the securities to be released is on us.
7. Warranty claims and best before date
7.1. The Customer must inspect the goods immediately upon delivery and report any defects, wrong deliveries or quantity discrepancy in writing. This duty of the Customer refers to partial deliveries on each subset. Hidden defects must be reported immediately upon discovery by the Customer.
7.2. The warranty claims become time barred one year after delivery of our products, notwithstanding any statutory provisions providing for a longer statute of limitations.
7.3. The limitation period in case of delivery recourse pursuant to sec. 478, 479 German Civil Code remains unaffected; it is five years from the delivery of defective goods by us to the Customer.
7.4. We expressly point out that some of our products have a shelf life of less than one year. This and the expiration of the shelf life is not deemed a defect.
7.5. In case of timely and justified complaints, the warranty claims of the Customer are initially limited at our discretion to the delivery of a non-defective item or repair of the defective item.
7.6. If our supplementary performance fails, the buyer may reduce the purchase price or withdraw from the purchase contract at his discretion. Damages claims under clause. 8 remain unaffected.
7.7. We expressly point out that our products partially have a best before date of less than one year stated on the packaging of our products. This concerns in particular batteries in our disposable products and their natural discharge, which can lead to a reduction of the number of possible applications stated on our products, and the nicotine content specified on Liquids or refill cartridges, that is reduced due to natural volatility. This and the expiration of the best before do provide for a warranty claim.
7.8. We also point out that some of our products have to be stored under certain conditions. The particular conditions required can be found on the packaging of the products. Therefore, the respective best before date cannot be achieved, if the storage conditions stated on the packaging are not met.
8.1. We are liable for damages only in case of fault. Claims for damages - for whatever legal reason - of the Customer which we caused by slight negligence are excluded. This does not apply if an obligation has been violated, which is essential for the achievement of the contractual purpose. An essential contractual obligation is deemed if on contractual obligation is breached in which fulfilment the Customer has trusted and also could trust.
8.2. Our liability for breach of a contractual obligation is limited to the extent of damage that had to be expected due to circumstances typically associated with its emergence when concluding the contract.
8.3. Damage claims under the Product Liability Act regarding injury of life, body or health or because of the assumption of guarantee and claims for damages due to gross negligence or wilful misconduct by us remain unaffected.
8.4. Unless stipulated otherwise above, liability is excluded.
9.1. The business relationship as well as the entire agreement between us and the Customer is solely subject to the substantive laws of the Federal Republic of Germany, excluding the German rules regarding the conflicts of law. The application of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
9.2. Place of performance and jurisdiction for all disputes arising from or in connection with the business relationship and the agreements between us and the Customer is Hanover. However, we can take legal action against the Customer at his seat.
9.3. The invalidity, voidness or unenforceability of individual provisions of these General Conditions of Sale shall not affect the validity of the remaining provisions.