General Terms and Conditions of the Togibaba Limited

Status: 12.09.2012


I. Coverage

1. The following terms of sale are valid to all contracts between the 

Togibaba Limited – German Regional Office

Head Office in London/ Great Britain, registered in England und Wales in the Companies House in Cardiff, Company No. 05602714, Registered Office: 483 Green Lanes, London, N13 4BS, UK

Director Abdullah Kallesoglu

Friedrich-Karl-Str. 20
50739 Cologne

VAT-IdNr. DE814640073
Companies' Register in Cologne District Court HRB 56750

Tel.: +49 221 200 467 60
Fax: +49 221 200 467 63
Email: info@togibaba.com 

(named as „Seller“) and the „Buyer“ regarding the delivery of goods, consulting services and information services. They are also valid for all further business relations in the future even if they are not explicitly agreed on again. Differing conditions of the Seller are without any obligation for the Buyer, beside the Buyer explicitly accepts them.

2. All agreements in connection with a contract between the Seller and the Buyer are described in the contract and in these General Terms and Conditions.


II. Offer and Conclusion of the Contract

1. An order of the Buyer is a binding offer, which can be accepted by the Seller by sending an order-confirmation or by delivering the goods and services within two weeks. Previous offers of the Seller, which were made before are subject to change and not binding. The presentation of goods and services is not a binding offer for the Seller and may stay in subject to a delivery by a supplier. The Buyer submits a quote, which is a binding offer by using the internet, fax, telephone or by email. The Seller then is able to decide about the acceptance of the offer. A contract between the Seller and the Buyer results from the acceptance of the Buyers offer by the Sellers delivery of the goods or services or by sending a written confirmation of the order. On internet market places is the offer of the seller binding and the bid and/or order of the buyer means the acceptance of the offer. For the seller and buyer are in detail the respective general terms and conditions of the internet market places binding for the coming off distance selling contracts on these market places.

2. Specifications, weights, materials, kind and range of the assortment, illustrations, designs, descriptions as well as other documents, which belong to the noncommittal offers of the Seller, remain in his property and are only binding if this is explicitly agreed in writing.

3. All offers are not-binding except for the case that the Seller has explicitly described them as binding in written form. Correct and punctual deliveries by the Sellers own suppliers shall be reserved. If the Seller is not able to deliver or if the Seller is not able to deliver in time due to full or partial non-availability of the goods, the Buyer will be allowed to withdraw from the contract after the unsuccessful expiration of an appropriate respite of at least fourteen days. In such a case the Buyer will not have any further rights.


III. Terms of Payment

1. As not agreed otherwise the prices of the Seller are "ex works" excluding packing costs, forwarding expenses, customs duties and insurances. The prices named by the Seller are in EURO and will include value added tax (VAT) as end prices if the Buyer is a private consumer in the sense of § 13 BGB and for the Buyer being an entrepreneur in the sense of § 14 BGB the prices will exclude value added tax (VAT). The value added tax (VAT) will be shown separately on the invoice. Shipping costs, which may result because the Buyer wants the shipment of the ordered goods to an agreed destination, are to be paid by the Buyer. If nothing else is noted all offered articles are available from stock. Due to the fact that the Seller mainly deals with wholesale goods, separate & residual items, unique pieces and imported goods, an article can be sold out in the meantime and be no longer available. In this case the purchase price will be rebooked immediately.

2. If nothing else is agreed with the Buyer in written form, the total purchase price will immediately be due without any deduction. The shipping exclusively will take place after payment in advance.

3. In the method of payment "payment in advance", the Buyer being an entrepreneur in the sense of § 14 BGB will get in default without a reminder of the Seller, if he does not pay the purchase price within 5 workingdays. If the Buyer is a private consumer in the sense of § 13 BGB, a written reminder is necessary for getting in default.
If the Buyer gets into default, the Seller will be entitled to require compensation starting with the date concerned.

4. In case of default the Buyer will not have the right to insist on the fulfilment of the existing contract. The Seller is permitted to sell the goods to third parties or to deliver comparable goods instead of the purchased goods or to withdraw from the contract. The previously agreed delivery time will also be extended.

5. If the agreed delivery time exceeds a period of three months starting from the completion of the contract or if the delivery takes more than three months starting from the completion of the contract on account of reasons only the Buyer is responsible for or on account of reasons falling only in the Buyers risk range, the Seller will be eligible to calculate the price valid on the day of the delivery. If the price-increase is more than 5 % of the former purchase price, the Buyer will be entitled to withdraw from the contract. This right of withdrawal will expire, if the Buyer does not withdraw within the period of two weeks, beginning with the date of the notification of the new price.


IV. Delivery Date

1. Dates of delivery or time limits, which are not explicitly agreed on as obligatory are not-binding. If the Buyer is a private consumer in the sense of § 13 BGB, the shipping of online orders takes place within two workingdays after the receipt of the complete due amount. Delivery periods do not commence until all the order details have been fully clarified.

2. If the Seller culpably exceeds an explicitly agreed fixed-date or gets into default because of other reasons, the Buyer will allow him a reasonable period of at least fourteen days for the performance – starting with the date of receiving the written default-setting to the Seller. The Buyer will have the right to withdraw from the contract if the time of respite expires unsuccessfully.

3. The Seller is entitled to partial deliveries at any time, as far as this is reasonable for the Buyer.


V. Passing of Risk – Shipping/ Packaging

1. If the Buyer is an entrepreneur in the sense of § 14 BGB, the shipping takes place on danger of the Buyer, so that the passing of the risk to the Buyer takes place with the delivery of the goods to the freight carrier. The Seller will try to consider requests und interests of the Buyer regarding the mode of shipment and the shipping-type-sequence; thus resulting extra costs - also in the case of freight-free supply-agreement – will be paid by the Buyer. The Seller will store the goods at expense and danger of the Buyer, if the shipping cannot be made as a result of a Buyers request or default. In this case the announcement that the shipping is ready is equivalent to the delivery.

2. If the Buyer is a private consumer in the sense of § 13 BGB, the shipping always takes place on danger of the Seller. Item 1 of Passing of Risk does not apply in this case.


VI. Disposal

1. The packing material is according to the take-back obligation of the seller by law licensed in Germany at „Der Grüne Punkt - Duales System Deutschland GmbH“, so that customers in Germany can dispose of these at collecting points of the dual system.

2. In connection with the sale of batteries and accumulators we are obligated according to the battery legislation to indicate you as a consumer to the following: batteries and accumulators can not be disposed with household waste, but you are obligated to return used batteries and accumulators by law. You can send back the batteries purchased from us at our expense to us, or give them back at retailers or free community collection points without any costs. Contaminated batteries are provided with a mark consisting of a crossed out trash can and the chemical symbol (Cd, Hg or Pb) of the contained heavy metal.


VII. Warranty/ Liability

1. If the Buyer is an entrepreneur in the sense of § 14 BGB, the warranty-rights of the Buyer do imply that the Buyer will examine the received goods on completeness, transport damages, obvious failings, consistency and quality and that the Buyer will immediately reprehend detected failings in writing. Hidden failings shall be reprehended in writing immediately after they are detected.

2. If the Buyer is a private consumer in the sense of § 13 BGB, the period of limitation for material defects will be two years starting with the date of delivery. The limitation of a claim for second-hand goods will be one year starting with the date of delivery. Excluded from this limitation are claims of the buyer for body and health damages as well as claims for other damages, if at least gross negligence can be imputed to the Seller.
If the Buyer is an entrepreneur in the sense of § 14 BGB, the period of limitation will be six months starting with the date of delivery, for the case that the defect could not have been detected during the examination after the receiving of the goods.

3. The Seller is not responsible for material defects resulting from unsuitable or inappropriate use, usual abrasion, incorrect or careless treatment, as well as for results from inappropriate or not agreed changes or maintenance by the Buyer or third parties. The Seller is also not responsible for defects, which reduce the value or the suitability of the goods insignificantely. The Buyer will loose any rights from material defects if he makes changes on the claimed goods without the Sellers agreement.

4. The Seller will not be obligated to the warranty, if the Buyer being an entrepreneur in the sense of § 14 BGB does not reprehend an obvious defect in time in writing. As far as there is a defect of the goods, which the Seller is responsible for and the Buyer reprehended in time, the Seller will firstly be obligated to supplementary performance, unless the Seller has the right to refuse the supplementary performance according to the legal requirements.
If the Buyer is an entrepreneur in the sense of § 14 BGB, on demand complained goods are to be sent back immediately to the Seller with a copy of the invoice. The Seller takes over the transport costs under the condition, that the notice of defect is justified.

5. The supplementary performance can take place as a removal of the defect or as a supply of new goods, depending on the choice of the Buyer. The Seller will be able to refuse the way of supplementary performance the Buyer chooses, if it results in disproportional costs for the Seller. The reduction of the purchase price or the withdrawal from the contract is not possible during the time of supplementary performance. A retrieval of defects is abortive with the second unsuccessful attempt. The Buyer will be allowed to demand a reduction of the purchase price or a withdrawal from the contract if the supplementary performance is abortive or if the Seller refuses the supplementary performance.

6. As long as the reason for the defect does not lie on the Sellers intent, gross negligence or fraudulent concealment of a defect or on missing of a promised quality, further liabilities of the Seller beside liabilities described in the items 1 to 5 in this passage will be excluded for all direct and indirect defects without any consideration of the legal form of the claim. In cases of intent, gross negligence or fraudulent concealment of a defect or on missing of a promised quality the compensation will be limited with the predictable, typically occurring damage. Other compensation-liabilities are excluded. The Seller is especially not liable for damages, which occur not on the delivered good.

7. Except nothing different is described above, a further liability is excluded. As far as the liability of the Seller is excluded, this applies also to the personal liability of his employees, coworkers, representatives, agents and assistants.


VIII. Reservation of Proprietary Rights

1. If in the exceptional case a supply should take place without payment in advance due to an appropriate written agreement with the Buyer, then the property at the supplied goods shall pass to the Buyer after the payment of the purchase price in full. Before passage of title the Buyer is not entitled for dispositions over the goods.

2. The Buyer has to inform the Seller of all accesses from third parties immediately in writing, especially regarding compulsory enforcement as well as other impairments of his property. The Buyer has to replace all damage and costs, which result from an offence against this obligation and from necessary intervention measures against accesses of third parties.

3. The Seller will be allowed to demand the not-paid goods of his own property without a previous period-setting, if the Buyer does not follow his payment obligations despite a reminder of the Seller. In this case the Buyer will carry the transport costs resulting thereby. The distraint of the not-paid goods by the Seller always means a withdrawal from the contract.


IX. Right of Revocation

The revocation must take place in written form (e.g. letter, fax, email) within one month without indication of reasons or - if goods are delivered before expiration- also by the return of the goods. The period begins with the receipt of this instruction in text form, however not before the receipt of the goods by the recipient (in the case of recurring supply of similar goods not before the receipt of the first partial delivery) and also not before the fulfilment of our duties to supply information in accordance with article 246 § 2 in connection with § 1 section 1 and 2 EGBGB as well as our obligations in accordance with § 312g section 1 sentence 1 BGB in connection with article 246 § 3 EGBGB. For the preservation of revocation is the punctual sending off of the revocation or goods sufficient. The revocation is to be addressed to Togibaba Limited, Director: Abdullah Kallesoglu, Friedrich-Karl-Str. 20, 50739 Cologne, Germany, Fax: +49 221 20046763, Email: support@togibaba.com.

In the case of an effective revocation, the received benefits of both sides are to be refunded and as the case may taken benefits (e.g. interest) are to be returned. If you cannot refund the received benefits as well as the utilisation (e.g. advantages of using) to us totally or partly or only in worsened condition, you must as the case may be indemnify us to that extent. For the worsened condition and received benefits, you only have to pay compensation if the use or worsened condition is due to a handling exceeding the testing the properties and functioning. Under "testing the properties and functioning" is understood the testing and evaluation of the respective goods, as it is possible and common in a shop.

Package and shipping capable goods are to be sent back on our risk. You have to take the costs of the return, if the supplied goods correspond to the ordered and if the price of the goods which can be sent back do not exceed an amount of 40 Euro or if you at a higher price of the goods at the time of the revocation did not yet provided the consideration or a contractually agreed partial payment. Otherwise the return is for you free. Not package and shipping capable goods are picked up at you. Obligations for refunding of payments must be fulfilled within 30 days. The period begins for you with the sending of your revocation or the goods, for us with their receipt.


X. Applicable Law/ Court of Jurisdiction

1. The relations between the contracting parties shall exclusively be governed by the Laws of the Federal Republic of Germany. The application of the uniform law about the international purchase of mobile things as well as the law about the conclusion of international sales contracts over mobile things is excluded.
If the Buyer is an entrepreneur in the sense of § 14 BGB, the court of jurisdiction is Cologne/ Germany.

2. The Buyer is not entitled to forward a claim from the sales contract to a third party without acceptance of the Seller.

3. If any regulation of these General Terms and Conditions should be invalid or unenforceable in whole or in part, the validity of the other remaining regulations of these General Terms and Conditions shall not be affected thereby. The invalid regulations are to be replaced by the relevant legal regulations.