General terms and conditions

1. Scope. These Conditions shall apply to all supplies, and services of any kind provided by the company Xplusplus GmbH, Bunsenstr. 5, 82152 Planegg, Germany, or Maximo Internacional SA, Longra, Rande, 4650-328, Felgueiras, Portugal (hereinafter called “Supplier“) to its customers (hereinafter called “Customer”). If “Supplier” and the “Customer” have entered into a contract of sale or a service or other agreement (hereafter collectively referred to as „Contract“), these Conditions shall apply, except if and to the extent that the Contract provides otherwise. These Conditions are exclusively drafted for transactions with businesses.

2. No Other Terms and Conditions. “Supplier” does not accept any terms and conditions which deviate from these conditions, except if such terms and conditions have been expressly accepted by “Supplier”. Customer business terms & conditions are not accepted, unless agreed to separately in writing, for each individual delivery.

3. Proposed costs incurred by „Customer“ are not binding. Any article price quotations which “Supplier” may provide shall not be binding on “Supplier”. The purchase order is determined by confirmation of the order to the seller or with delivery of the ordered goods.

4. Orders to “Supplier” must be submitted in writing. “Supplier” reserves a maximum of 8 weeks to confirm orders.

5. Terms of Delivery. All deliverables shall be delivered ex works AAA, Incoterms 2010. The prices quoted by “Supplier” shall be deemed agreed on the same basis. 48 Pairs per order, free to door delivery. Euro 1.50/Pair surcharge, when less than 48 pairs.

6. „Supplier“ shall be under no obligation to observe any delivery date until and unless the Customer has complied fully with all of its responsibilities regarding the delivery. Time shall not be regarded to be of the essence except if expressly agreed. No delivery date shall be binding on “Supplier” unless it has been expressly confirmed as “binding”.

7. “Supplier” reserves the right to make partial deliveries. Upon expiry of the agreed-to delivery date, is a period of 21 days valid for delivery.

8. The obligation to deliver on-time, shall be subject to the condition precedent that “Supplier” has been supplied correctly and on-time by its suppliers.

9. “Supplier” reserves the right to supply a Successor product to the deliverable ordered which has become available prior to delivery, provided that the successor product meets the agreed specifications and is not more expensive than the deliverable ordered.

10. Intellectual Property. “Supplier” expressly reserves all intellectual property and commercial protection rights with respect to all deliverables.

11. Confidentiality. Each party shall keep all reasonably confidential information with respect to the respective other party which it obtains in connection with the Contract strictly confidential and shall refrain from using any such confidential information except as strictly required to perform the Contract. Each party shall ensure that its officers, employees, consultants and subcontractors are, and remain, bound by a secrecy obligation corresponding to, or exceeding, the standards set by this clause. This confidentiality clause shall remain in force even after termination of the Contract for as long as the respective information is of reasonably confidential nature.

12. Adjustment of the Purchase Price. In the event that “Supplier” has agreed to deliver the deliverables more than four months after the date of the signing of the Contract and its provision costs increase after the said date and prior to “Supplier” identifying the specific deliverables for delivery to the Customer, “Supplier” shall have the right to increase the price agreed by an amount equivalent to such increase by giving notice of such increase to the Customer. In such case the Customer shall have the right to withdraw from the Contract, provided that “Supplier” receives the Customer’s notice to that effect within one week from the date on which the Customer has received the notice of the price increase.

13. Terms of Payment. All invoices shall be paid upon receipt without any deduction, unless otherwise agreed. Customer will be deemed in default with a payment at the latest after expiry of two weeks from (i) the due date and (ii) receipt of “Supplier” invoice. The payment terms are: 10 days, 3% discount; 30 days, net; Prepayment, 5% discount

14. Value Added Tax shall not be deemed included in the prices quoted by “Supplier”, and, if applicable, it will be shown separately in the invoice at the rate prevailing on the date of the invoice.

15. Price List. Supplies and services not covered by the Contract shall be billed based on the “Supplier” price list prevailing at the time of receipt of the order.

16. The Customer shall not be entitled to set off any of its claims against claims of “Supplier”, except where the Customer’s claims are undisputed or have been confirmed by a final court judgment. The foregoing shall also apply to any right of retention under civil or commercial law.

17. Limited Remedies for Defects (Warranty). In the event of any defect of a deliverable, including any deviation from agreed specifications and/or any violation of rights of third parties (collectively “Defects”) the Customer may exercise its statutory remedies for repair or replacement of the deliverable, and, only where that fails or in other exceptional cases as provided for in statutory law, withdraw from the Contract or demand a reduction in the agreed price (“Warranty Claims”) only subject to the following:

17.1 Any Warranty Claims shall be excluded unless the Defect in question substantially limits the suitability of the goods/shoes for the agreed purpose. A customer claim has to be made in writing (details & photo), eventually sent to “Supplier”. If the claim after the check is acceptable, can a replacement or a repair or a credit-note be provided.

17.2 The Customer shall inspect any goods/shoes and notify “Supplier” of any defects or deviations thereof immediately after delivery. In the absence of such immediate notice, the Customer shall be deemed to have consented to any deviations of the deliverables that could have been detected, in particular, without limitation, (a) defects, or (b) delivery of (i) a quantity or (ii) a product other than agreed. The notice shall in particular not be deemed immediate, if it is received more than 14 days after delivery.

17.3 „Supplier“ reserves the right to decide whether to repair or to replace any goods/shoes which should prove to be defective. If “Supplier” fails to exercise such right within a reasonable time limit set by Customer, such right shall pass to Customer. “Supplier” reserves – also in work contracts – at least two attempts at such repair or replacement, except where this should unduly prejudice Customer in individual cases. Where “Supplier” replaces a defective item/shoe, the Customer shall return the defective item/shoe to “Supplier” and compensate prior use of such an item.

17.4 If Customer intends not to resell goods to Consumers, it shall notify “Supplier” thereof prior to entering into the Contract. Any statutory right of recourse against “Supplier” shall be excluded except if and to the extent that the Customer proves that the deliverables supplied by “Supplier” for resale and giving rise to such recourse shall have been shipped to the Customer’s clients in the order in which they shall have been received by the Customer (FIFO). The Customer’s right of recourse shall be deemed excluded unless the Customer has notified “Supplier” of the assertion of any warranty claims in text form. In which case the Customer shall be indemnified for expenses in accordance with statutory law only by credits against further deliveries, he shall not be entitled to claim payment in cash.

18. Supplier“ shall not be deemed to have guaranteed certain properties of the deliverables except if it has expressly confirmed such guarantee. The manufacturer’s warranty issued with any deliverable shall not be deemed a guarantee of certain properties unless it expressly states otherwise.

19. Liability. “Supplier” shall be liable in damages, whether based on contract or any other legal theory, only to the extent that the damage was caused by gross negligence or willful misconduct imputable to “Supplier”. In the event of death of a natural person or personal injury to the latter, “Supplier” shall be liable also for slight negligence in accordance with statutory law. In addition, “Supplier” shall also be liable in accordance with statutory law for a slightly negligent violation of a fundamental duty under the Contract, but such liability shall be limited to such damage as “Supplier” could have reasonably foreseen at the time of signing of the Contract.
Fundamental duties as used herein comprises all duties which must be fulfilled by “Supplier” in order to enable consummation of the Contract and the achievement of its purposes and fulfillment of which the Customer may reasonably expect in view of the content and purposes of the Contract. This in particular includes the obligation to consummate obligations under the Contract when due and in a manner which does not endanger life or limb of Customer’s personnel. Limitations on “Supplier” liability agreed in the Contract or these Conditions shall apply also to the personal liability of “Supplier” officers, employees or agents. Any mandatory liability under the Product Liability Act and/or arising from a guarantee of properties shall remain unaffected. This Sec. 17 shall not be construed to shift the statutory burden of proof in any way.

20. Limitation Period. Customer’s remedies for Defects, including but not limited to the right to withdraw from the Contract, shall be subject to a limitation period of twelve months for newly manufactured deliverables and six months for used deliverables. The foregoing limitation period shall also apply to claims for indemnification or damages, in particular incidental or consequential damages, based on Defect.However, all remedies based on: fraudulent concealment of defects or gross negligence, willful misconduct or the death of a natural person or personal injury to the latter, caused by negligence or willful misconduct based on guarantees of properties and/or
the statutory recourse and the right to withdraw from the Contract based on a breach imputable to “Supplier” other than a Defect shall be subject to the applicable statutory limitation periods. The limitation periods shall begin on the date specified by the statute.
Where “Supplier” repairs or replaces a deliverable or attempts to do so, such repair or replacement shall not effect a renewal of the limitation period for the Customer’s Warranty Claims. Rather, such Warranty Claims shall be subject to a limitation period equivalent to the remaining limitation period applicable to the original deliverable, except that such limitation period shall not expire earlier than three months after the conclusion of the repair or replacement or “Supplier” refusal to undertake further attempts at such repair or replacement.

21. Retention of Title. Until payment in full of the purchase price is made by the Customer, “Supplier” shall retain ownership / title to the deliverables („Reserved Deliverables“). The Customer shall advise “Supplier” without any delay of any attachments of any such Reserved Deliverables, in particular of any judicial execution measures or any other seizures, as well as of any damage suffered by such Reserved Deliverables. The Customer shall be entitled to re-sell Reserved Deliverables within the ordinary course of business, provided that “Supplier” reserves the right to withdraw its consent to such re-selling at any time. The Customer hereby assigns to “Supplier” all claims against third parties arising out of the re-selling of a Reserved Deliverable as security for the payment in full of the purchase price (the “Assigned Claims”). “Supplier” hereby authorizes the Customer to collect upon and enforce the Assigned Claims, provided that “Supplier” reserves the right to withdraw this authority at any time. This authority shall automatically be deemed revoked in the event that the Customer ceases to make payments to any creditors. Upon request, the Customer shall provide to “Supplier” a written account of the buyers of Reserved Deliverables and of any outstanding claims against such buyers.

22. Subcontractors. “Supplier” may make use of subcontractors to perform any of its obligations under the Contract or these Conditions, provided that the use of any such subcontractors shall not limit or restrict “Supplier” obligations towards the Customer.

23. Notices. Any notices, declarations or waivers which may be declared or made pursuant to the Contract or these Conditions shall be valid only if they are in writing.

24. No Assignment. The Customer shall not be entitled to assign its rights under the Contract – except for claims for payment – to any third party without ”Supplier” prior written consent, which consent shall not be unreasonably withheld.

25. Severability. Should one or more of the provisions of the Contract or these Conditions be or become invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be affected.

26. Place of performance for all obligations shall be at the legal seat of “Supplier”.

27. Governing Law. The Contract and these Conditions shall be subject to the laws of the Federal Republic of Germany with the exception of the UN Sales Convention (CISG).

28. Jurisdiction. All disputes arising under or in connection with Contract and/or these Conditions shall be submitted exclusively to the courts of Munich, to the extent that the Customer is a commercial entity or a public law corporation, or a public law fund or trust. The same shall apply if, at the time the claim is brought, the Customer’s domicile is not in Germany or not known. “Supplier” shall in any event be entitled, at its discretion, alternatively to take legal action against the Customer in the courts having general personal jurisdiction over the Customer.

29. Language: The English text version of these Conditions is for information purposes only. Only the German version of these Conditions is legally binding.