1.1 These General Terms and Conditions for Sales of Amscan Europe GmbH (referred to below as "Amscan") apply to all contracts between Amscan and its customers on the sale and/or delivery of movable objects (also referred to below as "products"), where the customer is
a) a corporate entity or individual performing their trade or profession (entrepreneur within the meaning of Section 14 of the German Civil Code (BGB)) at the time of conclusion of the contract, or
b) a corporate entity established under public law or a special fund under public law.
1.2 These General Terms and Conditions for Sales shall apply exclusively. Conflicting or deviating general terms and conditions of the customer shall only apply if and to the extent that Amscan expressly acknowledges them in writing. In particular, silence on the part of Amscan shall not constitute acceptance of or consent to such deviating terms and conditions, even in the case of future contracts. These General Terms and Conditions shall also apply instead of any general terms and conditions of the customer (e.g. purchasing terms and conditions) even if they state that acceptance of the order constitutes unconditional acceptance of the general terms and conditions.
1.3 These General Terms and Conditions for Sales in their current version shall also apply as a framework agreement to future contracts on the sale and delivery of movable objects with the same customer, without Amscan being obliged to refer to them in each individual case.
1.4 To the extent that individual agreements have been made with the customer particular cases, they shall have priority over these General Terms and Conditions for Sales. The contents of such agreements shall only be effective when stated in a written contract or confirmed in writing by Amscan.
1.5 Legally relevant statements and notifications which are to be made to Amscan by the customer after conclusion of the contract (e.g. setting of deadlines, reports of defects or declarations of withdrawal or price reduction) shall only be effective if made in writing.
2.1 Information and advice and other services by Amscan are provided exclusively on the basis of gained experience. All statements on Amscan's products and services, and especially those in the illustrations, drawings, details of capacity and performance and other details contained in Amscan's quotations and publications are to be regarded as approximate average values.
2.2 The directions for application are compiled by Amscan with the due care exercised in the industry, but do not relieve the customer of his obligation to check the suitability of the products for the purpose which he intends.
2.3 The documents belonging to quotations, such as drawings, illustrations, technical data, references to standards and statements in advertising materials do not constitute statements of quality, warranties of characteristics or guarantees unless they are expressly designated in writing as such.
2.4 Amscan expressly retains all rights of ownership and copyright to all products, packaging, catalogues, documentation (e.g. drawings, plans, statements of weights and dimensions, calculations and costs) and other product descriptions or documents, including those in electronic form. Unless otherwise agreed, the sale and delivery of products does not entitle the customer to copyrights or licence. The customer commits itself not to make the documents listed in the previous sentence accessible to third parties unless Amscan issues its express written consent.
3.1 The communication from Amscan to the customer designated as "quotations" are non-binding and are made without engagement. They constitute an invitation to the customer to place an order for goods or services.
3.2 The order of products by the customer shall constitute a binding offer of a contract. Unless otherwise stated in the order, Amscan shall be entitled to accept this offer of a contract within two weeks of receipt.
3.3 A contract shall only come into effect - even in the course of normal business - when Amscan accepts the customer's order. Acceptance may either be communicated in writing (e.g. in confirmation of order) or constituted by the despatch of the products to the customer. The content of the contract shall be determined by Amscan's confirmation of order.
4.1 Amscan shall only be obliged to supply goods which are on stock, unless otherwise expressly agreed in writing. The assumption of a procurement risk shall in particular not be imposed solely by Amscan's obligation to deliver an object defined by type only.
4.2 Amscan shall be entitled to deliver additional or reduced quantities or weights by up to 5% (for custom-made products up to 10%) in relation to the ordered volume.
4.3 In the event of call orders or acceptance delays caused by the customer, Amscan shall be entitled to provide the service immediately. Any wishes for modifications by the customer cannot therefore be taken into account after the order has been placed, unless this has expressly been agreed in writing.
4.4 The customer is to inform Amscan in writing and in due time prior to the conclusion of the contract of any special requirements he has for Amscan's products or services.
5.1 Periods of delivery for goods or services shall only be binding when they have been expressly confirmed as binding in writing by Amscan. They shall commence on the date of the acknowledgement of order. Unless otherwise agreed, the period of delivery shall be deemed to have been met if the customer has received the notice of readiness for despatch of the objects to be supplied at the agreed time or within the agreed period, and in the case of other services, if the service has commenced within the period. It shall be permissible to deliver goods and provide services before the end of the delivery period.
5.2 Compliance with periods of delivery for goods and services shall be dependent on the clarification of all technical questions, and in particular on the prompt receipt of all documents, necessary approvals and releases to be provided by the customer, and compliance with the agreed terms of payment and other obligations of the customer. Should the above conditions not be fulfilled, the periods shall be appropriately extended; this shall not apply to the extent that the delay is within Amscan's control.
5.3 Amscan reserves the right to make partial deliveries to a reasonable extent.
5.4 Should the delivery period for goods or services be exceeded for reasons within Amscan's control, the customer shall be entitled, after setting an appropriate period of grace, to withdraw from the contract. Claims for damages shall be governed by the provisions of section 12 of these General Terms and Conditions.
5.5 Should Amscan fall behind with deliveries und the customer suffer damages due to this delay, the customer shall be entitled to demand a flat rate compensation payment for delay. This shall amount to 0.5% for each full week of delay, in total however a maximum of 5% of the value of the part of the total delivery, which due to the delay cannot be used in a timely manner or as specified in the contract.
5.6 Should the customer cause a delay in delivery of the objects to be supplied or in the performance of other services, Amscan shall be entitled to require compensation for the losses or damages it has incurred in this respect, including any additional expenses. The right to make further claims or assert further rights is reserved.
5.7 In the case of default in payment by the customer, Amscan shall be entitled to exercise a right of retention for further deliveries or other services.
6.1 To the extent that Amscan cannot meet binding delivery periods for reasons beyond its control (non-availability of the goods), it shall inform the customer of this without delay and at the same time notify him of the prospective new delivery period. If the goods are still not available within the new delivery period, Amscan shall be entitled to withdraw from the contract in whole or in part without any liability arising on its part to pay damages; any consideration already paid by the customer shall be refunded by Amscan without delay.
6.2 Amscan shall in particular be entitled to withdraw from the purchase contract if it is not correctly and punctually supplied by its suppliers for reasons beyond its control and in spite of having concluded a corresponding covering transaction.
6.3 In the case of force majeure, the provisions set out in clause 6.1 shall apply accordingly. Furthermore, force majeure shall include war, riot, industrial disputes, strikes, lock-outs, official directives or actions, unavoidable shortages of energy or raw materials, transport bottlenecks beyond Amscan's control, unforeseeable disruptions to operation, for example due to fire, flood and damage to machinery, and all other hindrances which, when viewed objectively, have not been culpably brought about by Amscan.
6.4 If a delivery date or delivery period has been agreed as binding and if the agreed delivery date or delivery period is exceeded as a result of events as set out in clauses 6.1 to 6.3, the customer shall be entitled, after setting a reasonable period of grace which expires without performance, to withdraw from the as yet unfulfilled part of the contract if he cannot in an objective view be reasonably expected to continue to adhere to it. In such a case, further claims by the customer, including in particular claims for damages, shall be excluded.
7.1 Unless otherwise agreed, delivery shall be made ex-works (as defined in Incoterms(R) 2010) at the registered office of Amscan, which shall also be the place of performance.
7.2 On customer's request and expense, the products will be consigned to a different destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, Amscan shall be entitled to determine the method of consignment (and in particular the carrier, transport route and packaging) itself.
7.3 The dispatch shall be insured by Amscan against theft, breakage, transport, fire, water and other damages only at customer's express request and at its expense.
7.4 The risks of accidental destruction and accidental deterioration of the products shall be transferred to the customer on handover at the latest. In the case of sale by dispatch, however, the risks of accidental destruction and accidental deterioration of the products and the risk of delay shall be transferred no later than on handover of the products to the forwarding agent, carrier or other person or organization appointed to effect the shipment.
7.5 Should the acceptance of the products or their dispatch be delayed for reasons within the customer's control, Amscan shall be entitled at its own option, after setting a 14-day period of grace, to require immediate payment of the purchase price or to withdraw from the contract or to refuse performance and require damages in lieu of performance in its entirety.
7.6 Should the customer be in default of acceptance or fail to provide assistance or should Amscan's delivery be delayed for other reasons within the customer's control, Amscan shall be entitled to require compensation for the resulting damages including additional expenses (e.g. storage costs). This will be charged as lump sum compensation in the amount of 0.25% of the agreed net invoice amount per calendar week or part thereof, commencing on the delivery date or - in the absence of a delivery date - on notification of the readiness for dispatch of the products. This shall not prejudice the demonstration of any greater damages and pursuit of further claims by Amscan (including in particular reimbursement of additional expenses, appropriate compensation and termination of the contract); the lump sum shall however be set off against any further monetary claims. The customer shall be permitted to demonstrate that Amscan has incurred no losses or damages or significantly lower losses or damages than the above lump sum.
8.1 All prices are stated in euros, ex-works including packaging, however excluding freight, postage, insurance and other transportation costs, plus value added tax to be borne by the customer at the applicable statutory rate.
8.2 The prices are to be calculated in accordance with Amscan's list prices as on the day of delivery, unless otherwise agreed and the delivery is to be performed first in more than four months after the conclusion of the contract.
8.3 For small quantities, following pro-rata lump-sum fee will be charged:
Germany: In the case of order value under 150.00 EUR net (retail) or 300.00 EUR net (wholesale), a pro-rata lump-sum fee of 10.00 EUR will be charged. The minimum order value is 100.00 EUR net.
Austria + Switzerland: In the case of order value under 300.00 EUR net, a pro-rata lump-sum fee of 7.50 EUR will be charged. The minimum order value is 100.00 EUR net.
8.4 In the case of sale by dispatch (clause 7.2), the customer shall bear the transport costs ex-warehouse and the costs of any transport insurance desired by the customer. Amscan will not take back any transport packaging or any other packaging covered by the German Packaging Ordinance, which shall become the property of the customer, with the exception of reusable pallets.
8.5 Unless otherwise agreed, the purchase price shall be due immediately without any deductions. Payment bank cheques are not accepted.
8.6 Even if no reminder is issued, the customer shall be deemed in default with payment if he fails to pay within 30 days of receipt of the invoice and payment being due. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. Amscan reserves the right to pursue claims for further damages from default. This shall not prejudice Amscan's entitlement in dealings with merchants to the interest counting from the due date (Section 353 of the German Commercial Code (HGB)).
8.7 The customer shall only have a right of setting-off or retention insofar as his counterclaims are recognized by declaratory judgement, undisputed, recognized by Amscan or are based on the same contractual relationship. This shall not prejudice clause 10.5 in the case of defects in the supply.
8.8 Should it become apparent after conclusion of the contract that Amscan's entitlement to the purchase price is at risk from inability of the customer to pay (e.g. as a result of an application to institute insolvency proceedings), Amscan shall be entitled as provided for in law to refuse performance and - after setting a period of grace if necessary - to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts for the production of non-fungible things (individual custom-made items), Amscan may declare its withdrawal immediately; this shall not prejudice the statutory provisions on the dispensability of setting a period for performance.
9.1 All products supplied by Amscan shall remain the property of Amscan ("goods subject to retention of title") until all present and future sums owing to Amscan as a result of the purchase contract and a continuing business relationship are paid in full.
9.2 The customer is to insure the goods subject to retention of title sufficiently, in particular against fire and theft. Claims on the insurance policy resulting from damage to the goods subject to retention of title are herewith already assigned to Amscan in the amount of the value of the goods subject to retention of title.
9.3 The customer may neither pledge the goods subject to retention of title to third parties nor assign them as security until all the sums owing as stated in clause 9.1 have been paid in full. The customer is to notify Amscan in writing without delay if and to the extent that the goods subject to retention of title are seized by third parties.
9.4 On conduct of the customer in contravention to the contract, and in particular non-payment of the purchase price due, Amscan shall be entitled as provided for in law to withdraw from the contract and/or require the surrender of the products on grounds of the retention of title. The demand for surrender shall not automatically constitute a declaration of withdrawal; Amscan shall rather be entitled merely to require surrender of the products and reserve the right to withdraw from the contract. Should the customer fail to pay the purchase price due, Amscan may only exercise these rights when it has previously set the customer a reasonable period for payment without result, or when the setting of such a period is dispensable under the terms of the law.
9.5 The customer shall be entitled to resell and/or to process the goods subject to retention of title in the normal course of business. In such a case, the following provisions shall additionally apply.
9.6 The retention of title shall also extend to the full value of the goods created by processing, mixing or joining Amscan's products, with Amscan deemed to be the manufacturer. Should, on processing, mixing or joining the products with products from third parties, the ownership rights of those third parties persist, Amscan shall acquire co-ownership in proportion to the invoice values of the processed, mixed or joined products. For the rest, the same shall apply to the goods created as to the products delivered subject to retention of title.
9.7 The customer hereby assigns his receivables from third parties resulting from the resale of the products or the goods created therefrom in full or in the amount of Amscan's co-ownership share as applicable in accordance with the previous paragraph to Amscan as security. Amscan accepts the assignment. The obligations of the customer set out in clause 9.3 shall also apply with regard to the assigned receivables.
9.8 The customer, together with Amscan, shall be entitled to collect the receivables from the resale. Amscan undertakes not to collect the receivables as long as the customer fulfils his payment obligations to Amscan, is not in default with payments, no application for institution of insolvency proceedings has been made and there is no other deficiency in his ability to pay. If this should however be the case, Amscan may require the customer to notify Amscan of the assigned receivables and the relevant debtors, to provide all the information necessary for collection, hand over the corresponding documents and notify the debtors (third parties) of the assignment.
9.9 Should the realizable value of the securities exceed Amscan's receivables by more than 10%, Amscan shall release securities of its choice on request by the customer.
10.1 The customer's rights in the case of defects of quality and defects of title (including incorrect deliveries and shortfalls shall be governed, unless otherwise stipulated below, by the provisions of the law.
10.2 The basis of Amscan's liability for defects shall be above all the agreement reached concerning the quality of the products. The product descriptions (including those of the manufacturer) which were provided to the customer before he placed his order or were adopted in the contract in the same way as these General Terms and Conditions of Sales shall constitute agreements on the quality of the products when they are designated as such.
10.3 The customer's claims based on defects shall be dependent upon him having fulfilled his statutory obligations to examine the products and report defects (Sections 377 and 381 of the German Commercial Code (HGB)). The delivered products are to be thoroughly examined without delay after the delivery to the customer or to a third party designated by the customer. They shall be deemed as approved if Amscan has not received a written defect complaint within seven days following the delivery concerning the obvious defects (including incorrect deliveries and shortfalls) or other defects that would have been evident at a thorough examination without delay. Regarding further defects, the delivered products are considered approved if Amscan has not received a written defect complaint within seven working days from the moment of the defect's appearance. However, should the defect have been recognisable in normal use at an earlier date, is the period of claim to commence with this earlier date. Should the customer fail to perform an orderly examination and/or report defects, Amscan shall bear no liability for the unreported defects.
10.4 If the objects delivered are defective, Amscan may first opt to cure either by remedying the defect (subsequent improvement) or by supplying products free of defects (replacement delivery). This shall not prejudice Amscan's right to refuse the selected method of cure when the legal conditions for such refusal are fulfilled.
10.5 Amscan shall be entitled to make the cure owed dependent on the customer paying the purchase price due. The customer shall however be entitled to retain a reasonable amount of the purchase price in proportion to the defect.
10.6 The customer is to give Amscan the necessary time and opportunity to effect the cure owed, and in particular to hand over the products which have been found defective for test purposes. In the case of a replacement delivery, the customer is to return the defective objects to Amscan in accordance with the provisions of the law.
10.7 Transport charges resulting from the transfer of the rejected products to another location than the place of performance, as well as costs for assembly and disassembly shall not be borne by Amscan.
10.8 If the cure fails or a reasonable period to be set by the customer for the cure expires without result or such period is dispensable under the terms of the law, the customer may withdraw from the purchase contract or reduce the purchase price. There shall however be no right of withdrawal in the case of a minor defect.
10.9 Claims by the customer for damages or compensation for futile expenditure shall only be valid as per clause 11 and are for the rest excluded.
10.10 Should a customer request for remedy of defects be unjustified, Amscan may require the customer to reimburse Amscan for the costs incurred.
11.1 Unless otherwise stipulated in these General Terms and Conditions for Sales, including the provisions below, Amscan shall be liable in accordance with the relevant provisions of law for infringement of contractual and non-contractual obligations.
11.2 Amscan shall be liable for damages - on whatever legal grounds - in the cases of malicious intent and gross negligence. In the case of ordinary negligence, Amscan shall only be liable
a) for damages resulting from fatalities, personal injury or damage to health,
b) for damages resulting from infringement of a material contractual obligation (an obligation whose fulfilment makes the orderly implementation of the contract possible in the first place and compliance with which is and can be normally expected by the parties); in such a case Amscan's liability shall however be limited to compensation for the foreseeable loss or damage which typically occurs.
11.3 None of the above shall prejudice any liability because of fraudulent concealment of defects, the provision of a guarantee or the acceptance of a procurement risk, liability under the German Product Liability Act and under other mandatory provisions of the law.
11.4 The above exclusions and limitations to liability shall apply to the same extent to Amscan's managers and employees, other agents and subcontractors.
11.5 The above stipulations are not associated with any reversal of the burden of proof.
12.1 In deviation from Section 438, paragraph 1, no. 3 of the German Civil Code (BGB), the general limitation period for claims based on defects of quality and defects of title shall be one year from delivery.
12.2 If, however, the product is a building structure or an object which according with its normal purpose has been used for a building structure and has caused the defectiveness of that building structure (construction material), the limitation period shall be 5 years from delivery as provided for by the statutory regulation (Section 438, paragraph 1, no. 2 of the German Civil Code (BGB)). None of the above shall prejudice the special statutory regulations for real rights of third parties to return of the object purchased (Section 438, paragraph 1, no. 1 of the German Civil Code (BGB)), fraud on the part of the seller (Section 438, paragraph 3 of the German Civil Code (BGB)) and recourse claims on suppliers on final delivery to a consumer (Section 479 of the German Civil Code (BGB)).
12.3 The above limitation periods set down in purchasing law shall also apply to contractual and non-contractual claims for damages by the customer which are based on a defect in the products, unless application of the regular statutory limitation period (Sections 195 and 199 of the German Civil Code (BGB)) would lead in an individual case to a shorter limitation period. In no case shall any of the above prejudice the limitation periods set down in the German Product Liability Act.
13.1 These General Terms and Conditions for Sales and all legal relationships between Amscan and the customer shall be exclusively governed by the law of the Federal Republic of Germany, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG). The prerequisites for and the effects of retention of title as set out in section 10, shall be governed by the law in force at the place where the goods are located when, in accordance with that law, the choice of German law would be impermissible or ineffective.
13.2 If the customer is a merchant as defined by the German Commercial Code (HGB), a corporate entity established under public law or a special fund under public law, the exclusive venue for all disputes - including international disputes - arising directly or indirectly from the contractual relationship shall be a competent court at the location of Amscan's registered office. Amscan shall however also be entitled to bring actions against the customer at the customer's general place of jurisdiction.
13.3 Amendments to the contract by individual agreements shall require no particular form to be effective. For the rest, amendments and additions to these General Terms and Conditions for Sales and supplementary agreements shall only be effective if made in writing. This shall also apply to any waiver or cancellation of this clause requiring written form.
13.4 Employees of Amscan are not entitled to complement or deviate contents of the contract. This does not apply to Amscan's institutions and proxy holder ("Prokurist") as well as to representatives authorised by Amscan to this in writing.
13.5 Should any of the above provisions be or become ineffective, this shall not affect the validity of the remaining provisions. The parties shall be obliged to replace the ineffective provision with a stipulation that approximates to it in its commercial effect as closely as possible.