GTC

General Terms and Conditions (GTC)
Brekina Modellspielwaren GmbH, 79331 Teningen (Germany)

1. Scope of the Conditions

1.1 The deliveries, services, and offers of Brekina Modellspielwaren GmbH – hereinafter referred to as the “Seller” – are made exclusively based on the following General Terms and Conditions (hereinafter “GTC”). These shall also apply to all future business relationships, even if they are not expressly agreed again. We do not recognize any terms and conditions of the Buyer that conflict with or deviate from these GTC, unless we have expressly agreed to their validity in writing. They shall not become part of the contract even if we execute delivery or service with knowledge of such conditions without explicit reservation. At the latest upon acceptance of the goods or services, these conditions shall be deemed accepted.

1.2 Individually agreed arrangements with the Buyer take precedence over our GTC. Such agreements must be made or confirmed in text form for evidentiary purposes. The contract or our written confirmation shall prevail regarding the conclusion and content of such agreements, subject to evidence to the contrary.

2. Offers, Conclusion of Contract

2.1 We deliver exclusively to entrepreneurs within the meaning of §14 of the German Civil Code (BGB).

2.2 Quotations, price and delivery information, for example in our online shop or in flyers, do not constitute binding offers, but are to be understood as an invitation to the Buyer to submit an offer. Orders placed by the Buyer constitute binding offers to us, to which the Buyer is bound for 14 days unless otherwise stated. The contract is concluded when we confirm the Buyer’s order, commence execution of the contract, or deliver the goods. The Buyer waives receipt of our declaration of acceptance. If our declaration is, by way of exception, to be understood as a legally binding offer, we may revoke our offer at any time prior to acceptance by the Buyer, unless otherwise expressly stated in the offer.

2.3 Commercial agents have no authority to conclude contracts. In such cases, a contract is concluded only upon our written confirmation.

3. Additional Provisions and Information for Orders in Our Online Shop

3.1 Our online shop is also directed exclusively at entrepreneurs. We do not conclude contracts with consumers.

3.2 Orders are only possible after registration in the online shop. By submitting the registration request, the Buyer confirms his entrepreneurial status. We reserve the right to reject registration requests. The Buyer is obliged to provide complete and truthful information during registration, to provide corresponding proof upon our request, and to update the data in case of changes.

3.3 When placing an order via our online shop, the Buyer submits a binding offer to conclude a contract for the goods contained in the shopping cart by clicking the button “submit order.” By placing the order, the Buyer confirms that he is acting in the course of his commercial or independent professional activity. After placing an order in the online shop, the Buyer receives a confirmation. The Buyer can view ongoing orders in his user account.

4. Special Provisions for Pre-Orderable Items

4.1 For items not marked as “Deliverable”, in particular items in “Coming soon” or “Reproduction” (hereinafter “non-available models”), the following special provisions apply:

4.2 Delivery time: These items can currently be pre-ordered but are not available for delivery. The Buyer is aware that the delivery date is unknown. Waiting periods of several months, in some cases years, are possible. The Buyer is entitled to withdraw from his order if the item is not available within twelve months from the order date and, due to circumstances occurring after the order, further adherence to the contract is unreasonable.

Prices: We expressly point out that the prices quoted are based on the circumstances known at the time of contract conclusion and manufacturer information at the time of order, and that price changes are possible up until delivery. Our right to make price adjustments is governed by Section 5.4.

4.4 Invoicing occurs upon delivery.

4.5 EWithdrawal must be in text form and exercised within 14 days of becoming aware of the reason. Any advance payments will be refunded. Further claims by the Buyer are excluded.

4.6 The Seller may cancel the order if it becomes apparent that an item will not be available within the foreseeable future (usually within 12 months). If the item is permanently unavailable, neither party is bound by the contract. Further claims by the Buyer are excluded.

5. Prices, Packaging

5.1 All prices are net prices in EURO plus applicable statutory VAT. Additional deliveries and services will be charged separately.

5.2 Unless otherwise stated, prices are ex warehouse Flörsheim (Germany), including simple packaging, but excluding customs duties. Shipping costs are regulated separately in Section 6.

5.3 If the Buyer requests special packaging or shipping methods, the additional costs are borne by the Buyer and are shown separately in the invoice. The Seller delivers goods in transport and outer packaging intended exclusively for commercial use. The Buyer is obliged to dispose of all packaging at his own expense in accordance with statutory provisions or to recycle it. The Seller is not obliged to take back packaging. The Buyer indemnifies the Seller from third-party claims arising from improper disposal.

5.4 The prices quoted for our delivery are based on the circumstances prevailing at the time the contract is concluded. In the event of unforeseeable, significant cost increases beyond our control, e.g., due to increases in freight rates, transport costs, taxes, customs duties, or other public charges, currency fluctuations, price increases for raw materials or supplies, we are entitled, and in the event of price reductions, obligated, to adjust the prices at our reasonable discretion. The Seller's price at the time of delivery shall be used for the calculation. The Buyer is only entitled to withdraw from his order in the event of significant price increases.

6. Minimum Shipping Value and Shipping Costs

6.1 Orders will only be shipped once a minimum net order value of EUR 250.00 (for deliverable goods) is reached (“minimum shipping value”). Until the minimum shipping value is reached, orders are collected in the Buyer’s account and shipped upon reaching the threshold.

6.2 Within the EU: free shipping if the minimum shipping value is met, unless otherwise agreed.

6.3 Outside the EU: delivery ex works. Shipping costs are charged to the Buyer and shown separately in the invoice.

6.4 For deliveries to EU countries, we also deliver upon reaching an order value of EUR 100.00 (net) for deliverable goods, subject to separate agreement. In this case, we charge the following minimum quantity surcharges:

• Germany: EUR 7.60
• BE/NL/LUX: EUR 10.00
• Rest of EU: EUR 15.00

6.5 No deliveries will be made for shipping value under EUR 100.00 (net).

7. Cancellation

7.1 After conclusion of the contract, cancellation is only possible with the Seller’s written consent. If consent is granted, a processing fee of 5% of the order value will be charged unless expressly agreed otherwise. The Seller reserves the right to charge separately for any costs incurred for custom-made products or to demand reimbursement of the actual expenses incurred.

7.2 In the event of unilateral cancellation without consent, the Seller may claim lump-sum damages of 15% of the purchase price. The right to claim higher damages remains reserved.

8. Transfer of Risk, Delivery, Acceptance

8.1 The risk passes to the Buyer upon handover to the carrier at the latest – even in the case of partial deliveries or if shipping costs are borne by the Seller.

8.2 Shipments shall only be insured against theft, transport, fire, and water damage at the express request and expense of the Buyer.

8.3 The shipping route and means of transport shall be determined by the Seller according to expediency.

8.4 If shipment is delayed due to circumstances attributable to the Buyer, the risk shall pass to the Buyer upon readiness for shipment. The Seller must, however, arrange insurance upon the Buyer’s request and expense.

8.5 If delivery is made on industrial pallets, they must be returned free of charge within 30 days in equal number and quality. Otherwise, they will be invoiced to the Buyer at cost price.

8.6 Transport damage must be reported immediately in writing to the Seller and acknowledged by the carrier.

9. Delivery Time

9.1 Delivery dates are non-binding unless expressly confirmed as binding. Delivery time for available goods is usually 3 to 7 business days. Deviations are indicated in product offers. Special rules apply to items in “Coming Soon” or “Reproduction” (see Section 4).

9.2 Delivery is subject to timely and proper self-supply. We assume no procurement risk. If products or services being unavailable, we will notify the Buyer.

9.3 We are not liable for non-deliveries or delays in delivery if these are due to force majeure or other impediments beyond our control and we could not reasonably be expected to take the impediment into account or to avoid or overcome the impediment or its consequences. This applies, for example, to acts of war, acts of terrorism, natural disasters, operational, transport, and traffic disruptions, failure of suppliers and raw material suppliers to deliver, strikes, lawful lockouts, official orders, mass illnesses, epidemics, and pandemics, manufacturing disruptions including machine failure, and labor shortages. In such cases, we will inform the Buyer of the impediment and its effects. If such circumstances makes delivery or performance significantly more difficult or impossible and the hindrance is not only temporary, both parties are entitled to withdraw from the contract. In the event of temporary hindrances, our delivery or performance deadlines shall be extended or our delivery or performance dates postponed by the duration of the hindrance plus a reasonable start-up period. Each party is entitled to withdraw from the contract if the resulting delay exceeds a period of 3 months or if, as a result of the delay, it is no longer reasonable to expect the party to adhere to the contract before the expiry of this period, with the consequence that any advance payments made will be refunded. No other claims shall be accepted.

9.4 In the event of a delay in delivery, the Buyer shall only be entitled to withdraw from the contract with regard to the unfulfilled part after the expiry of a reasonable grace period, which shall generally be at least two weeks. In the event of a delay in delivery or impossibility of performance, we shall only be liable for claims for damages in accordance with Section 13.

9.5 If the Buyer does not accept the goods or if delivery is delayed at their instigation, the Seller is entitled to demand compensation for the resulting damages and additional expenses. During the period of default of acceptance, we shall be entitled to charge a lump-sum for damages amounting to 0.2% of the invoice amount for each week commenced, up to a maximum of 5% of the invoice value. Further rights, in particular the right to withdraw from the contract or to claim damages instead of performance, remain unaffected. The Seller is also entitled, after the expiry of a reasonable period of time has elapsed without result, to dispose of the goods in stock elsewhere and to deliver to the Buyer within a reasonable new delivery period.

9.6 The Seller may make partial deliveries to a reasonable extent.

10. Payment

10.1 Unless otherwise agreed, payments are due upon shipment of goods. Deductions (e.g. cash discounts) are not permitted unless expressly agreed otherwise.

10.2 The Seller is entitled, despite any provisions of the Buyer to the contrary, to first offset payments against the Buyer's older debts. If costs and interest have already been incurred, the Seller may first offset the payment against the costs, then against the interest, and finally against the principal performance.

10.3 A payment shall only be deemed to have been made when the Seller can dispose of the amount without objection and without conditions.

10.4 During the period of default in payment, the Buyer is obliged to pay default interest and a lump-sum for damages in accordance with the statutory provisions as minimum damages. We reserve the right to claim further damages. Our claim to commercial interest on arrears (§353 HGB - German Commercial Code) against merchants remains unaffected. We reserve further rights, in particular the right to withdraw from the contract and/or claim damages.

10.5 If, after conclusion of the contract, we become aware of circumstances that are likely to significantly reduce the Buyer's creditworthiness and jeopardize our claim to the purchase price, we shall be entitled to provide outstanding services only against advance payment or security deposit. §321 of the German Civil Code (BGB) shall apply (mutatis mutandis). In such a case, we shall be entitled to revoke all special agreements (including special discounts), deferral agreements, and payment terms granted, including with regard to all other outstanding claims arising from the business relationship, and to demand immediate payment of the claims. Circumstances that could significantly reduce the Buyer's creditworthiness include, for example, default on payment obligations.

10.6 The Buyer is only entitled to offset, refuse performance, or retain payment if their counterclaims have been legally established or are undisputed. In the event of defects in the goods, the Buyer's rights remain unaffected.

11. Warranty

11.1 Our products are free from defects if they have the agreed quality and are fit for contractual use upon transfer of risk. Minor deviations in quality, color, and design customary in trade are reserved.

11.2 The Buyer is obliged to inspect the goods immediately for defects, including deviations in quality and quantity, insofar as this is feasible in the ordinary course of business, and to notify us immediately in writing if a defect is found. In any case, the inspection must be carried out before the goods are resold. Defects that are apparent during a proper inspection of the goods must be reported in writing within 10 working days of receipt of the goods at the latest. Defects that were not apparent during a proper inspection (hidden defects) must be reported in writing within two working days of discovery. If defects are not reported in accordance with the above provisions, the delivery shall be deemed to have been approved in accordance with the contract. Notes on delivery notes shall not be considered as notification of defects. Sales representatives, transport personnel, or other third parties are not authorized to accept notifications of defects.

11.3 We are entitled to demand that the Buyer return the goods to us for the purpose of examining the complaint and, if necessary, for repair/replacement. We are also entitled to demand that the Buyer make the rejected goods available for inspection by a representative of the Seller.

11.4 In the event of defects in the goods, we shall, at our discretion, provide warranty by means of free repair or replacement (subsequent performance). The Buyer may only withdraw from the contract or reduce the purchase price if no attempt at subsequent performance is made within a reasonable period set by us or if subsequent performance is impossible, refused, failed, or unreasonable. The period for subsequent performance must be at least four weeks, unless this conflicts with the legitimate interests of the Buyer. In case of doubt, subsequent performance shall only be deemed to have failed after the third failed attempt at subsequent performance. The Buyer is not entitled to a right of withdrawal due to insignificant defects. In addition to the statutory requirements, the special provisions in Section 13 apply to rights of withdrawal and claims for damages due to defects.

11.5 Warranty claims against the Seller are only available to the direct Buyer and are not transferable.

11.6 Regarding the limitation period for claims for defects, Section 14 applies.

12. No Alteration of Goods

The Buyer may not modify the goods or subsequently print or relabel them without the express consent of the Seller. In particular, the Buyer is prohibited from removing or otherwise impairing the product marking.

13. Damages

The Seller shall only be liable for damages in accordance with the following provisions. Otherwise, liability for damages of any kind, regardless of the basis for the claim, including liability for culpa in contrahendo, is excluded.

• The Seller shall only be liable for damages, provided that the other requirements for a claim are met, if he is guilty of intent or gross negligence.
• We shall be liable for simple negligence in the event of a breach of an obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely (so-called cardinal obligation).
• If we are liable for negligent behavior, our liability is limited to the damage that we typically had to expect based on the circumstances known at the time the contract was concluded.
• The Seller is liable for damages caused by delay up to a maximum of 5% of the value of the service in default.
• Liability shall be limited to a maximum of EUR 5,000.00 per claim.
• The above exclusions and limitations of liability shall not apply if the Seller has assumed a guarantee for damages that are to be compensated under the Product Liability Act, or for damage to life, limb, or health.
• The above exclusions and limitations of liability also apply in favor of our employees, vicarious agents, and other third parties whom we use to fulfill the contract.

14. Limitation Periods

14.1 The limitation period for claims due to defects is one year. §§ 445a and 445b of the German Civil Code (BGB) remain unaffected.

14.2 Other contractual claims of the Buyer due to breaches of duty shall become time-barred after one year. This does not apply to the Buyer's right to withdraw from the contract due to a breach of duty for which we are responsible and which does not constitute a defect.

14.3 Notwithstanding this, the statutory limitation periods apply to the following claims of the Buyer:

• Claims for damages arising from product liability, for damage resulting from injury to life, limb, health, or a material contractual obligation, as well as for other damages based on an intentional or grossly negligent breach of duty by us or our vicarious agents.
• Claims due to fraudulent concealment of a defect.

14.4 Our claims against the Buyer shall become time-barred in accordance with the statutory provisions.

15. Retention of Title

15.1 The delivered goods remain the property of the Seller until all claims have been paid in full (reserved goods).

15.2 The Buyer is entitled to sell the goods subject to retention of title in the ordinary course of business, provided that he is not in default, that no insolvency proceedings have been initiated against his assets, and that he is not obliged to file for insolvency proceedings. The Buyer hereby assigns to us by way of security his claim from the resale of goods subject to retention of title in the amount of the invoice value of our claims (including value added tax) against the Buyer arising from the business relationship at the time of resale, plus a security surcharge of 20%. The Buyer is authorized to collect the claims assigned to us from the resale in the ordinary course of business. The proceeds to which we are entitled must be forwarded to us immediately upon receipt. At our request, the Buyer must inform us of the names of the debtors of the assigned claim and notify them of the assignment. We are authorized to notify the customers of the assignment on his behalf. The collection authorization shall expire automatically if the Buyer is in default of payment, if insolvency proceedings have been initiated against his assets, or if he is obliged to file for insolvency proceedings.

15.3 The Buyer is obliged to notify us immediately in the event of third-party access (e.g. seizure) to the reserved property.

15.4 In the event of breach of contract by the Buyer, in particular default in payment, the Seller is entitled to take back the goods subject to retention of title or, if necessary, to demand assignment of the Buyer's claims for surrender against third parties. The taking back or seizure of the goods subject to retention of title by the Seller does not constitute a withdrawal from the contract.

15.5 Upon full payment of all claims of the Seller arising from the business relationship, the Seller's ownership of the goods subject to retention of title and the assigned claims shall automatically pass to the Buyer.

15.6 The Seller undertakes to release the securities to which it is entitled under the above provisions (retention of title and assignment of securities) at its discretion at the Buyer's request to the extent that the value of the goods subject to retention of title not yet sold and the assigned claims exceeds the claims to which the Seller is entitled by more than 20% on a sustained basis.

16. Place of Performance, Jurisdiction, Applicable Law

16.1 The place of performance for all claims arising from the contractual relationship is Teningen.

16.2 The exclusive place of jurisdiction is – to the extent permitted by law – Freiburg (Breisgau). Alternatively, we are also entitled to sue the buyer at his or her general place of jurisdiction.

16.3 All contracts are governed exclusively by German law. The UN Convention on Contracts for the International Sale of Goods is excluded.

17. Severability Clause

Should any provision of these GTC be invalid, the validity of the remaining provisions shall remain unaffected.