Terms and Conditions

General Terms of Business B2B

TERMS AND CONDITIONS GENERAL TERMS OF BUSINESS B2B

§1 Scope of Application

Our Standard Terms of Business (STCs) for the B2B area shall apply exclusively for an entrepreneur, a legal person under public law or a special fund under public law within the meaning of Sec. 310 (1) of the German Civil Code (BGB) (hereinafter: “Contracting Party/Parties“). We do not accept conflicting terms of the Contracting Party, or terms which deviate from our General Terms of Business – even if we have knowledge of them – unless we have expressly approved of their validity in writing.

§ 2 Contracting Parties and Dealer Access 

(1) We supply our products under the conditions applicable to dealers only if such dealers provide prior proof of commercial activity. The Contracting Party may sign up and register on our website www.funfactory.com/b2b under the B2B section. In addition, the Contracting Party must send us proof of commercial activity by post or fax.

(2) After approval, the Contracting Party shall receive dealer access to our B2B site. Among other things, this allows the Contracting Party to place orders electronically on the internet. The dealer access is protected with a password to prevent misuse. The Contracting Party shall take suitable measures to ensure that the password is not made accessible to third parties.

(3) The Contracting Party warrants the truthfulness and correctness of information it provides in the context of registration or in the context of the provision of dealer access e.g. with respect to its company, personal information and the website on which it offers our products, and agrees to inform us without delay of any changes in this information.

(4) Registration as a dealer or the granting of dealer access does not entitle the dealer to be supplied by us.

(5) We have the right to block dealer access after issuing a prior warning if the Contracting Party violates its contractual duties.

(6) The Contracting Party may terminate its dealer access at any time in writing. An e-mail to infomail@funfactoryweb.com shall suffice as notification.

(7) We may terminate dealer access observing a notice period of one month. The right to block the dealer access shall hereby remain unaffected.

§ 3 Offer and Minimum Order Value

(1) If the order is to be deemed an offer pursuant to Sec. 145 of the BGB, we may accept such offer within two weeks. A purchase agreement is formed only upon our written confirmation of the order or by shipment of the goods.

(2) If the Contracting Party orders the goods electronically, we shall confirm receipt of the order without delay. Confirmation of receipt may be combined with the declaration of acceptance. (3) We do not accept any orders with a net value of less than EUR 250.

§ 4 Copyright

(1) The Contracting Party is entitled to use any images, text or videos (“Materials”) we provide during the business relationship, under the following conditions. This non-exclusive right of use shall apply only as long as the Contracting Party uses the Materials provided to it exclusively for advertising our products on those of its websites that it has specified on the registration form. 

The license shall not authorize the Contracting Party to use the Materials for advertising our products on sales portals of third parties, e.g. eBay or Amazon, or to advertise our products on websites other than those designated on the registration form. Our consent is required for any other distribution, copying or use of Materials. The Contracting Party is not permitted to grant sublicenses. Furthermore, the Contracting Party is not permitted to process the Materials provided. Our rights shall also remain fully effective after our Materials have been added to an electronic archive.

(2) We reserve the right to revoke the non-exclusive right of use at any time. This shall apply in particular if the right of use is exercised in a manner that runs counter to any of our company interests, or if the afore-mentioned conditions are not complied with.

(3) Publishers or editors of newspapers or magazines or publishers of internet newspapers or blogs shall be granted a non-exclusive right of use of Materials provided to them for the designated purpose of use. These Materials may only be used for editorial purposes, not for advertising. It is not permitted to circulate, distribute, copy or use the Materials in any other form or to alter the message of the images (montage). Any Materials used shall indicate us as owner of the rights of use. This information shall be presented in the subject list or image description. In case of use on a website, a link to our website www.funfactory.com shall appear. Use of Materials is free of charge in return for remittance of a specimen copy. If used on the internet, we shall be informed of the URL/Domain of the website.

§ 5 Prices and Terms of Payment

(1) Unless otherwise indicated in the order confirmation, prices shall be deemed ex works Bremen, excluding packaging and shipping costs (postage, freight, insurance or delivery charges) and before the addition of the statutory VAT.

(2) Cash discounts shall only be granted based on prior written agreement. Calculation of cash discounts shall be based on the day of receipt of invoice payment to our account.

(3) Unless otherwise agreed, the purchase price shall be due within 30 days after invoicing and delivery. When the above-mentioned payment period has expired, the Contracting Party is in arrears. During the period of arrears, interest on arrears at the relevant applicable statutory interest rate on arrears is due on the purchase price. We reserve the right to claim further compensation for arrears. Our entitlement to charge businesses the commercial interest on arrears (§ 353 German Commercial Code) is unaffected.

(4) The statutory provisions shall apply to default in payment. If the Contracting Party is a new customer, the first two invoices shall be paid in advance. We reserve the right to request prepayment for additional deliveries. 

(5) The Contracting Party may offset counterclaims against our charges if such counterclaims are unappealable and final or if we have accepted such claims. Furthermore, the Contracting Party may exercise the right of retention to the extent that a counterclaim is based on the same contractual relationship. In the event of defects in the delivery, the Contracting Party’s counterclaims are unaffected.

(6) If the Contracting Party has not fulfilled its obligations to pay in due time despite a warning, we shall be entitled to block the dealer access, subject to further claims.

(7) If after conclusion of the contract it is discovered that our entitlement to the purchase price is threatened by the Contracting Party’s inability to pay (e.g. because of an application for the commencement of insolvency proceedings), we are entitled to cancel the contract in accordance with the legislation on refusal of performance and, where applicable, following the setting of a deadline.

§ 6 Delivery Period and Late Delivery

(1) The delivery period shall be individually agreed or stated by us upon acceptance of the order. If this is not the case, the delivery period shall be about two weeks following conclusion of the contract. Timely and correct fulfilment by the Contracting Party of its duties is a precondition of delivery. The justification of an unfulfilled contract is reserved. Part deliveries are permitted to a reasonable extent and may also be charged for separately.

(2) In so far as we are not able to observe binding delivery periods for reasons for which we are not to blame (unavailability of the service), we shall inform the Contracting Party of this without delay and at the same time inform it of the expected new delivery period. If the service is still not available within the new delivery period, we are entitled to cancel the contract entirely or in part. We will refund any payment already made by the Contracting Party without delay. Particular instances of unavailability of the service in this sense are failure of timely delivery by our own supplier, where we have concluded a congruent covering transaction, where neither we nor our supplier is to blame or where in the individual case we are not obliged to make a purchase. 

§ 7 Delivery

(1) Unless otherwise agreed, delivery shall take place FCA, which is also the place of fulfilment. The costs of dispatch (packaging, post, freight, insurance, delivery charges etc.) shall be borne by the Contracting Party.

(2) If the Contracting Party delays acceptance or is to blame for breach of any other duty to cooperate, we will be entitled to demand compensation for any losses thereby incurred by us, including any additional expenditure (e.g. storage costs). 

(3) Our liability is based on statutory provisions, to the extent that the purchase agreement on which the transaction is a fixed-term transaction within the meaning of Sec. 286 (2) no. 4 of the BGB, or of Sec. 376 of the German Commercial Code. We also are liable pursuant to statutory provisions provided that the Contracting Party is entitled to assert that its interest in further performance of the contract has discontinued as a result of a delay in delivery attributable to us.

(4) We are also liable pursuant to statutory provisions if delayed delivery is attributable to intentional or grossly negligent breach of contract committed by us, our legal representative, vicarious agent or employee. To the extent that delayed delivery is not attributable to intentional breach of contract committed by us, our legal representative, vicarious agent or employee, our liability for compensation of damages shall be limited to foreseeable and typically occurring damage.

(5) We are also liable pursuant to statutory provisions if a delay in delivery attributable to us, our legal representative, vicarious agent or employee is due to culpable breach of a material contractual obligation. In such a case however, liability for compensation of damages shall be limited to foreseeable and typically occurring damage.

(6) Insofar as delay in delivery is attributable solely to a culpable breach of a non-material contractual obligation committed by us, our legal representative, vicarious agent or employee, the Contracting Party is entitled to demand a fixed-sum compensation for delay for each whole week of delay in the amount of 3% of the value of the goods to be delivered, not to exceed however 15% of the value of the goods to be delivered.

§ 8 Warranty for Defects

(1) The Contractual Party shall only exercise its warranty rights subject to compliance with the duty to inspect and make a complaint pursuant to Sec. 377 of the German Commercial Code. If a defect is discovered upon inspection or later, we are to be notified of this in writing without delay. Notification is deemed to be without delay if it is given within two weeks, with timely dispatch of the notification sufficing for observance of the deadline. Regardless of this duty of inspection and complaint, the Contracting Party must report any visible defects (including incorrect or incomplete delivery) in writing within two weeks following delivery, with timely dispatch of the notification sufficing here too for observance of the deadline. If the Contracting Party omits to conduct the correct inspection and/or report the defect, our liability for any unreported defect is excluded. 

(2) Claims of defects asserted by the Contracting Party shall be time-barred after 12 months after delivery of goods we supply. This shall not apply if statutory provisions, in particular Sec. 479 (1) of the BGB, prescribes longer limitation periods.

(3) If the item purchased should be defect, we are entitled to supplementary performance either by removal of the defect or by delivering a new item free of defects, at our discretion. (4) If we fail to remedy the defect or if the reasonable deadline for the remedy to be set by the Contracting Party has expired without success or can be dispensed with according to the legislation, the Contracting Party may cancel the purchase contract or reduce the purchase price. However, there is no right of cancellation in the event of a minor defect.

§ 9 Liability

(1) Aside from this, we are only liable for damages attributable to intentional or grossly negligent breach of contract committed by us, our legal representative, vicarious agent or employee. This shall not apply to death or injury to body or health of the Contractual Party, nor to claims based on breach of material contractual obligations. To this extent, our liability is subject to statutory provisions.

(2) Liability is limited to foreseeable, typically occurring damage, except in the case of intentional conduct by us, our legal representative, vicarious agent or employee.

(3) Claims for damages based on mandatory provisions of product liability law or other mandatory statutory provisions shall remain unaffected.

(4) Unless otherwise agreed in the aforegoing, liability shall be excluded. In particular, we exclude any liability for technical or other defects in connection with the dealer access.

§ 10 Retention of Title

(1) We retain title to the item purchased until we have received all payments due based on the business relationship with the Contracting Party. If the Contracting Party should exhibit behavior that infringes the contract, in particular in case of default of payment, we are entitled to repossess the item purchased. Our repossession of the item purchased does not constitute withdrawal from the agreement, unless we have expressly declared such. We shall be authorized to dispose of the item purchased after repossessing it. The proceeds from such disposal shall be offset against the amount due from the Contracting Party, less reasonable costs of disposal.

(2) The Contracting Party shall inform us without delay of any attachment or other access by third parties, so that we can take legal action pursuant to Sec. 771 of the German Code of Civil Procedure. To the extent that the third party is not able to reimburse us for court and other costs of a lawsuit pursuant to Sec. 771 of the German Code of Civil Procedure, the Contracting Party shall be liable for the amount due. (3) The Contracting Party shall be entitled to resell the purchased item in the course of a normal business transaction. However, the Contracting Party hereby assigns to us all claims in the amount of the invoice (including VAT) due us accruing to it from the resale to its customer or third parties. The Contracting Party shall remain authorized to collect this claim even after assigning it. Our authority to collect the claim on our own shall remain unaffected. However, we undertake to not collect the claim as long as the Contracting Party fulfills its payment obligations with the proceeds collected without defaulting, and in particular, as long as insolvency proceedings have not been initiated or payment has not ceased. In such cases we may however demand that the Contracting Party disclose to us the assigned claims and the respective debtors, provide us with all information required to collect the debt, surrender the relevant documents and notify the debtors or third parties of the assignment.

(4) We undertake to release the security to which we are entitled if requested by the Contracting Party to the extent that the realized value of our security exceeds the value of the claims to be secured by more than 10%--we shall have discretion in the selection of security to be released.

§ 11 Data Protection

We use the data related to the order exclusively in compliance with the German Data Protection Act for processing and handling the orders. We otherwise refer to our data protection statement.

§ 12 Jurisdiction, Place of Performance and Applicable Law

(1) If the Contracting Party is a business, the place of exclusive (including international) jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Bremen. However, we are also entitled to bring legal action against the Contracting Party in the court having jurisdiction over its registered office.

(2) Unless otherwise provided for by the confirmation of the order, our registered seat shall be the place of performance.

(3) The laws of the Federal Republic of Germany shall apply, with the exclusion of the UN Convention on Contracts for the International Sale of Goods.

§ 13 Final Provisions and Severability

(1) Any changes in or amendments to our General Terms of Business shall be made in writing. (2) If individual provisions of our General Terms of Business should be invalid or contain a gap, the remaining provisions shall remain unaffected. The parties shall undertake to agree on a legally valid provision to replace the invalid provision that comes closest to the economic intent of the invalid provision or that fills the gap.

§ 14 Additional Information

Information regarding disposal in the European Union and participation in the dual system (for disposal of packaging) can be found at: www.funfactory.com.