General Terms and Conditions
F2 Fun & Function GmbH
GENERAL TERMS AND CONDITIONS OF SALE
As of: September 2023
1.GENERAL
These terms and conditions exclusively govern the legal relationship between F2 Fun & Function GmbH (hereinafter: F2 Fun) and its customers who are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) (i.e., individuals and entities acting in the exercise of their commercial or independent professional activities at the time of contract conclusion), as well as legal entities under public law or public-law special funds. These terms and conditions do not apply to customers who are consumers within the meaning of § 13 BGB.
2.APPLICABILITY
(1) The conditions listed below, in their respective valid version at the time of ordering, apply to all deliveries and services to be provided by F2 Fun to the customers mentioned in paragraph 1.
(2) Contradictory or deviating conditions of the customer are not recognized unless F2 Fun has expressly agreed to their applicability in writing beforehand. If F2 Fun carries out deliveries to the customer without reservation, even though F2 Fun is aware of the customer's terms and conditions, this does not constitute approval of conflicting or deviating conditions of the customer. In this case as well, only the following terms and conditions apply.
(3) If the customer wholly or partially objects to the terms and conditions of F2 Fun, F2 Fun is entitled to withdraw from the contract without the customer being entitled to a claim for damages in the event of such withdrawal.
3.CONCLUSION OF CONTRACT
(1) F2 Fun's product offerings are non-binding and constitute an invitation for the customer to submit an offer to F2 Fun in the form of an order. If F2 Fun confirms receipt of the order, this does not constitute acceptance of the offer contained in the order. The acceptance of the offer leading to the conclusion of the contract occurs only through the execution of the order or by means of an expressly prepared declaration of acceptance in written form.
(2) The customer grants F2 Fun a period of 14 days from the receipt of the order within which the offer (order) can be accepted. The revocation of the order is only effective after the expiration of this period, provided that no declaration of acceptance has been received by the customer until then.
(3) If the customer cancels their order after receiving F2 Fun's declaration of acceptance, the customer shall pay a cancellation fee equal to 30% of the value of the goods to F2 Fun.
(4) The agent's (representative's) claim to commission is void if it is determined that the contract between the third party and the company F2 Fun is not executed. In this case, F2 Fun is entitled to a 30% cancellation fee.
4.PLACE OF PERFORMANCE, DELIVERY, AND ACCEPTANCE
(1) The place of performance for all services under the delivery contract is Hof, the location of the seller's business establishment. Unless expressly agreed otherwise between the parties in written form, delivery is made from the warehouse at 95028 Hof. In this case, shipping is at the risk and expense of the customer. The buyer can designate the carrier. The goods are to be shipped uninsured.
(2) Special packaging is not owed by F2 Fun; it must be separately commissioned and paid for by the buyer.
(3) F2 Fun's delivery obligations are subject to the respective correct and timely self-supply (reservation of self-supply).
(4) Delivery time statements are only binding if made or confirmed in written form by F2 Fun. Adherence to bindingly agreed delivery deadlines requires that the customer has fulfilled the contractual obligations to be performed by him before the execution of the delivery in a timely and complete manner.
(3) The delivery period is extended reasonably if a delivery to the specified dates in the order is not possible without culpable conduct by F2 Fun, especially if delivery is impeded or prevented by force majeure (e.g., mobilization, war, riot, or similar events such as strike, lockout, pandemic, or epidemic). If unforeseeable weather conditions make timely delivery difficult, the delivery times are also extended reasonably. In the event of an extension of more than 4 weeks due to force majeure or weather conditions, both parties are entitled to withdraw from the contract.
(4) If the delivery is rendered impossible or unreasonably difficult due to force majeure as defined in the preceding paragraph, by government measures in the exporting and/or receiving country, extreme weather conditions, or similar circumstances, F2 Fun is released from the obligation to deliver for the duration of the hindrance and is entitled to withdraw from the contract. This also applies if one of the upstream suppliers is unable to deliver to F2 Fun in a timely manner for the aforementioned reasons. F2 Fun is obligated to notify the customer of the hindrance promptly if it is not already known to the customer or should be known.
(5) Both customer claims for damages due to delayed delivery and claims for damages in lieu of performance are excluded in all cases of delayed delivery, even if a deadline set by F2 Fun for delivery has expired. This does not apply if F2 Fun is guilty of intent or gross negligence, nor does it apply due to the violation of essential contractual obligations (cardinal duties), and also not in cases where F2 Fun is liable mandatorily for the violation of life, body, or health.
5.TRANSFER OF RISK
(1) F2 Fun delivers carriage forward from the warehouse (EXW / Ex Works according to Incoterms in the respective valid version), unless otherwise agreed.
(2) The risk of accidental loss or deterioration passes to the customer as soon as the goods have been handed over by F2 Fun to the person or carrier designated for collection or execution of the delivery. This also applies to any deliveries made by F2 Fun with its own vehicles or free of freight and packaging costs due to a special agreement.
(3) For the transfer of risk, it is equivalent to handover if the customer is in default of accepting the goods. This is the case, for example, if the customer does not accept the delivery offered to him in accordance with the contract.
6.PRICES
(1) The prices stated by F2 Fun are net prices, unless expressly indicated otherwise, and are applicable ex works/warehouse, plus value-added tax at the statutory rate in force at the time of the contract.
(2) Employees and representatives of F2 Fun are only authorized to accept payments upon presentation of a written collection authorization issued by the management.
7.RESERVATION OF OWNERSHIP
(1) F2 Fun reserves ownership of the delivered goods until full payment is made. Goods delivered, of which F2 Fun is the owner or co-owner, are hereinafter referred to as reserved goods.
The retention of ownership does not end if individual claims are included in ongoing invoices, nor does it end if a balance is drawn up and/or acknowledged there.
(2) If F2 Fun receives securities from the customer in accordance with the following provisions, F2 Fun will release securities at the customer's request at its own discretion, insofar as the value of the securities exceeds the value of all claims secured against the customer by more than 10%.
(3) During the existence of the retention of ownership, the customer is prohibited from pledging the reserved goods or transferring them to third parties as security. The customer is obliged to handle the reserved goods carefully and to insure them at his own expense against fire, water, and theft.
(4) In the event of seizures or other interventions by third parties, the customer must inform F2 Fun immediately in writing. If F2 Fun files a lawsuit against the third party to safeguard its own rights in accordance with § 771 of the German Code of Civil Procedure (ZPO), the customer, in addition to the third party, is liable for reimbursement of the judicial and extrajudicial costs.
(5) During the existence of the retention of ownership, the customer is only permitted to resell the reserved goods in the ordinary course of business and only on the condition that the customer receives payment from his customer or makes the reservation that ownership will not pass to the buyer until he has fully fulfilled his payment obligations.
(6) If the customer resells the reserved goods, the customer hereby assigns, as security, to F2 Fun the purchase price claim arising from the resale against his buyers, including all ancillary rights, without the need for subsequent special declarations. F2 Fun hereby declares acceptance of the assignment.
(7) If the reserved goods are sold together with other items without an individual price being agreed for the reserved goods, the customer assigns to F2 Fun, in priority to the other claims, that portion of the total price claim that corresponds to the price of the reserved goods invoiced by F2 Fun. F2 Fun also declares acceptance of the assignment in this respect.
(8) If the ownership of F2 Fun expires through processing, combining, or mixing, it is already agreed that the co-ownership of the customer in the new, uniform item passes to F2 Fun in the amount of the invoice value of the reserved goods. F2 Fun accepts this transfer. The customer keeps the new, uniform item free of charge for F2 Fun. Co-ownership of this item is considered reserved goods in the aforementioned sense.
(9) If the reserved goods are installed by the customer as an essential component into real property or a ship, the customer hereby assigns his claims arising from the installation against the respective owner as a result of the installation to F2 Fun as security, including all ancillary rights, including the right to establish a security mortgage. F2 Fun hereby declares acceptance of the assignment.
(10) Even after the assignment, the customer is authorized to collect this claim in his own name and on behalf of F2 Fun until revocation. F2 Fun will not revoke the authorization and will not directly collect the claim as long as the customer behaves in accordance with the contract, particularly disclosing the proceeds received and paying them to F2 Fun. F2 Fun will disclose the assignment to third parties and collect the claim itself as soon as the customer is in default of payment, or his financial situation significantly deteriorates, or the customer has ceased payments.
(11) Upon request, the customer is obligated to provide F2 Fun with all documents and information in his possession that are necessary or useful for enforcing the assigned claim against F2 Fun.
(12) If the customer violates his obligations (payment obligations, duty of care, disclosure obligations, etc.), F2 Fun is entitled, after a fruitless expiry of a previously set deadline, to take back the reserved goods and withdraw from the contract. If there is no obligation to set a deadline, F2 Fun is also entitled to this right without setting a deadline. The repossession and/or the assertion of the retention of ownership or the seizure of the reserved goods by F2 Fun does not constitute a withdrawal from the contract unless F2 Fun expressly declares withdrawal in written form.
8.ASSIGNMENT EXCLUSION AND SET-OFF PROHIBITION
(1) All rights that the customer has acquired from and in connection with contracts with F2 Fun and their implementation against F2 Fun can only be transferred to third parties if F2 Fun has expressly agreed to the transfer in written form.
(2) The customer is only entitled to set-off if his counterclaims have been finally determined, are undisputed, or have been acknowledged by F2 Fun. The right of retention is only available to the extent that the counterclaim is based on the same contractual relationship and has been finally determined, is undisputed, or has been acknowledged by F2 Fun.
9.EXAMINATION AND INSPECTION OBLIGATION
(1) The customer must inspect the delivered goods immediately upon receipt of the delivery and report any defects or shortages to F2 Fun without delay. The provisions of § 377 of the German Commercial Code (HGB) also apply to goods intended to remain with the customer.
(2) In the event that, contrary to these terms and conditions, a delivery has been agreed at the risk of F2 Fun, the customer, in the case of visibly damaged shipments before acceptance and in cases where transport damage becomes apparent after acceptance, is obliged to make a written damage assessment with the assistance of the carrier / freight forwarder, if possible. The customer is then obliged to provide F2 Fun with this damage assessment and all declarations and original documents (bill of lading, etc.) necessary to assert the claim.
10.WITHDRAWAL
In the event of the buyer's breach of contract, especially in case of default in payment, F2 Fun is entitled to withdraw from the contract and demand the return of the goods if the customer has not yet or not fully provided the consideration. F2 Fun is also entitled to withdraw if the customer has provided false information about his creditworthiness, becomes insolvent, or if his financial situation significantly deteriorates.
11.DEFECTS, EXPIRATION OF WARRANTY CLAIMS
(1) Customer claims due to a defect in the sold item expire, contrary to the legal regulations, after one year, calculated from the transfer of risk. This shortening of the warranty period to one year does not apply in cases where mandatory liability exists, such as under the Product Liability Act, in cases of intent, gross negligence, for injury to life, body, or health, or for the violation of essential contractual obligations (cardinal obligations).
(2) In the case of defects in the delivered goods, F2 Fun provides warranty, at its own discretion, through a reasonable price reduction, free rectification, or replacement delivery. If rectification fails or the replacement delivery is defective, the customer can demand a reduction.
(3) If F2 Fun provides a seller's guarantee, the nature and scope of the guarantee services are specified in the warranty conditions attached to the corresponding purchase item. Guarantee claims exist in addition to statutory claims and do not limit them.
(4) Further claims against F2 Fun or its agents are excluded, subject to the provisions in clause 13.
12.LIMITATION OF LIABILITY AND DISCLAIMER
(1) Subject to the provisions in clause 13, customer claims for damages, regardless of the legal basis, especially due to the violation of obligations arising from the contractual relationship and from unauthorized actions, are excluded.
(2) The claim for damages for the violation of essential contractual obligations is limited to the contract-typical, foreseeable damage, unless another case of mandatory liability (clause 13) applies.
(3) To the extent that the damage is covered by insurance taken out by the customer for the relevant damage event (excluding lump-sum insurance), F2 Fun is liable, subject to the provisions in clause 13, only for any associated disadvantages to the customer (e.g., increased insurance premiums due to damage, interest damage for interim financing, etc.). The same applies to damages caused by a defect in the delivered goods.
(4) To the extent that F2 Fun's liability is limited or excluded, this also applies to the personal liability of F2 Fun's employees, workers, employees, legal representatives, and agents. Furthermore, subject to clause 13, the personal liability of the aforementioned individuals for damages caused by them through slight negligence is excluded.
13.LIMITS OF LIABILITY LIMITATIONS AND DISCLAIMERS
In cases where liability is mandatory, such as under the Product Liability Act, in cases of intent, gross negligence, for injury to life, body, or health, or for the violation of essential contractual obligations (cardinal obligations), the liability exclusions and limitations provided in these conditions do not apply.
14.DATA PROTECTION
(1) F2 Fun is entitled to process customer data received in connection with the business relationship, regardless of whether it originates from the customer or a third party, for its own purposes in accordance with the Federal Data Protection Act.
(2) Damage claims due to the handling of such data are excluded, subject to clause 13.
(3) Personal data is collected by F2 Fun itself and processed in accordance with the Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR).
15.FINAL PROVISIONS
(1) The exclusive place of jurisdiction for disputes arising from contractual relationships governed by these terms and conditions is Hof. However, F2 Fun is entitled to sue the customer at its general place of jurisdiction.
(2) German substantive law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG), applies to all legal relationships between F2 Fun and the customer. The Incoterms in their current version also apply.
(3) If a provision of these General Terms and Conditions is or becomes invalid or unenforceable, the validity of the remaining provisions shall not be affected.
As of: September 2023