General terms and conditions (hereinafter "general terms and conditions" of, pixel-town OHG (hereinafter "UP2DENT”)

Version: April 2010

1. Validity of terms and conditions, written form 

1.1 UP2DENT delivers its goods exclusively on the basis of these general terms and conditions.

1.2 These general terms and conditions also apply to all future contracts between UP2DENT and the buyer even if they are not separately agreed again. They replace all terms and conditions that were previously agreed between UP2DENT and the buyer.

1.3 Terms and conditions of the buyer that are contrary to or deviate from these general terms and conditions are not part of any contract between UP2DENT and the buyer. UP2DENT expressly rejects their applicability. This also applies if UP2DENT carries out an order without reservation whilst being aware of contrary or additional terms and conditions of the buyer. UP2DENT equally does not accept terms and conditions even if UP2DENT refers or replies to correspondence that contains terms and conditions of the buyer or a third party or that makes reference to such.

1.4 Separate agreements, additions, modifications and supplementary agreements only apply if confirmed by UP2DENT in writing.

2. Offer and conclusion of contract

2.1 Offers and prices of UP2DENT are not binding and subject to change. UP2DENT reserves the right to make technical changes and changes in shape, color, and/or weight to goods already ordered; any such changes will be within reasonable limits.

2.2 UP2DENT can accept a contract offer made through an order by means of an order confirmation within two weeks following receipt of such order. The order confirmation can be made in writing, by telefax or by e-mail. Confirmation of receipt of an order does not constitute a binding acceptance of such order.

2.3 The minimum purchase amount is 1 piece.

3. Delivery time, time of performance, force majeure

3.1 Generally, ordered products will be delivered promptly, delivery times and times of performance stated by UP2DENT are to be understood as indicative, non-binding, subject to change and subject to self-supply. Damage claims based on non-observance of delivery times and times of performance are excluded, except in cases where delivery times and/or times of performance have been agreed as “fixed” expressly and in writing, 

3.2 UP2DENT may render partial performances unless such partial performance is not of interest for the buyer.

3.3 Insofar as a delivery delay or delivery time was agreed as “fixed”, it refers to the time of transfer to the carrier or freight forwarder or to other companies charged with the transport of the goods. In all other cases, delivery delays and deadlines are deemed to have been observed if UP2DENT was in a position to dispatch the goods in time, insofar as this ability to dispatch was communicated to the buyer.

3.4 If, with respect to UP2DENT, circumstances prevail, for which UP2DENT is not responsible and which make performance substantially more difficult or impossible, then UP2DENT is entitled to rescind the contract insofar as the hindrance is not only of a temporary nature. In the event of goods being unavailable, UP2DENT will without undue delay (i) inform the buyer and (ii) return any payments already received. In the case of temporary obstacles the delivery period will be extended by the length of time for which the obstacle exists. 

3.5 If (i) UP2DENT has failed to meet a deadline, and (ii) the buyer sets an appropriate additional delay for delivery or performance, it is entitled, after this period has expired to no avail, to rescind the contract. In this case, statutory claims apply to both the consideration for UP2DENT and the claims of the buyer, but only within the limits set in Section 8 below.

4. Dispatch and transfer of risk

4.1 All goods are dispatched EXW stock in Cologne (Germany) and for the account of the buyer. 

4.2 The risk of accidental loss or accidental deterioration of the goods passes to the buyer when the object for delivery is handed over to the carrier or freight forwarder or to other companies charged with carrying out the dispatch. This also applies to partial deliveries. 

4.3 Buyer’s delay in accepting goods shall have the same legal consequences as the handing over of the goods.

4.4 If delivery or dispatch is not made for reasons that lie outside the responsibility of UP2DENT, the risk of accidental loss or accidental deterioration of the goods will pass to the buyer as soon as UP2DENT reports to the buyer its readiness to deliver. 

4.5 Dispatch is made without insurance. If the buyer requests insurance for dispatch, the buyer has to bear the cost of such insurance. 

5. Prices and payment

5.1 The prices from the price list of UP2DENT that is valid on the day the order is placed apply. The rate of Value Added Tax applicable at such time as well as the costs for packaging and delivery are not included in these prices. The prices are understood EXW stock Cologne (Germany) and do not include packaging. Packaging will be charged on top and are at the expense of the buyer. 

5.2 For dispatch within the European Union UP2DENT needs the sales tax identification number of the buyer. In case, no such number is provided, UP2DENT will charge 19% sales tax. 

5.3 UP2DENT will grant the rebates indicated on the price list that is valid on the day the order is placed.

5.4 To undertakings unknown to UP2DENT and/or to new customers, UP2DENT delivers exclusively per cash on delivery or against prepayment. For prepayment, UP2DENT grants a discount of 3% of the value of the products ordered. 

5.5 If and to the extent, the parties have not agreed otherwise, Invoices of UP2DENT are payable net without deductions within thirty days after invoicing. In case of earlier payment, UP2DENT grants a discount as indicated on UP2DENT’s invoice. If no such rebate is indicated on the invoice, UP2DENT grants a discount of 2 % in case payment within 8 days after invoicing. UP2DENT can make deliveries dependent on advance payments or the deposit of security. If the payment period is exceeded, the buyer is in arrears, without a reminder  being necessary. UP2DENT can, at its discretion, set off payments of the buyer against costs, interest and debts of the buyer, and will in this case inform the buyer about the way in which such set-off is being carried out. 

5.6 Payments from other countries than Germany are to be made either by check or by SWIFT bank transfer to the following account: Dresdner Bank AG Köln, account number 920493300, BIC: DRESDEFF370, IBAN: DE6937 0800 4009 2049 3300. 

5.7 The buyer only has a right of set-off payment if its counter-claims (i) have been confirmed by final and irreversible judgment of a court, or (ii) are undisputed or are recognized by UP2DENT in writing.

5.8 The buyer can only invoke a right of retention on the basis of its own counter-claims if the counter-claims relate to the same contractual relationship and if such counter-claim is established by a final court decision or recognized in writing by UP2DENT.

6. Retention of title 

6.1 The transfer of title in delivered goods (hereinafter: “Reserved Goods”) only occurs when the purchase price has been paid in full. UP2DENT retains title in delivered goods until all of its claims against the buyer arising out of the current business relationship have been met in full. The buyer is entitled to process and to sell the Reserved Goods in proper business dealings as long as it is not in arrears. The buyer may not impawn unpaid goods or transfer title in unpaid goods by way of security. All claims arising from the resale or based on any other legal grounds in respect of the Reserved Goods (including all current account receivables) are hereby assigned to their full extent by the buyer to UP2DENT by way of security. UP2DENT grants the purchaser revocable authorization to collect in its own name for the account of UP2DENT the claims assigned to UP2DENT. This authorization to collect claims can be revoked if the purchaser does not fully comply with its payment obligations.

6.2 To the extent the value of the security mentioned above exceeds the claims of UP2DENT by more than 10% in total, UP2DENT will return the excessive securities upon request. 

6.3 If third parties seize the Reserved Goods, the buyer will advert such third parties to the fact that the Reserved Goods are property of UP2DENT and will notify UP2DENT without undue delay. Where the buyer fails to comply with terms and conditions of the contract - in particular in the case of payment arrears - UP2DENT is entitled to take back the Reserved Goods or, where necessary, to demand the assignment of the buyer’s right to possession in respect of third parties. The buyer is liable jointly and severally with the third party for the reimbursement of the court and out of court costs of legal action pursuant to § 771 German Code of Civil Procedure or any provision of similar import applicable. 

6.4 The repossession or the attachment of the reserved goods by UP2DENT does not in itself constitute a rescission from the contract.

7. Warranty

7.1 UP2DENT will perform its contractual obligations with the diligence of a prudent merchant and with due regard to the applicable norms and stipulations. Claims made by the buyer in respect of defects are only valid if it has properly observed its due obligations to check and complain under § 377 of the German Commercial Code.

The warranty period is one year counting from when the goods are delivered. 

7.3 Apart from this, the statutory rules of warranty apply subject to the proviso that UP2DENT may, in its discretion, either repair or replace defective deliveries or services. The buyer is only entitled to exercise its further statutory rights if (i) two attempts by UP2DENT to repair or replace have failed or (ii) such supplementary performance has been refused by UP2DENT or has not been carried out in an appropriate way; however, even then, only within the limits set in Section 8 below. 

7.4 The Buyer has an unlimited right to return products within 14 days after invoicing if such products are still in their original packaging. 

7.5 The chemical composition of UP2DENT articulating papers is such that they cannot dry out. In addition to the legal warranty, UP2DENT therefore warranty that UP2DENT articulating papers are usable for a period of time of five years after the day of purchase, provided that they are stored appropriately, i.e. dry, cool and protected from humidity and solar light. If an articulating paper becomes unusable during that period of time, UP2DENT will provide replacement. UP2DENT will bear delivery costs for the replacement of up to EUR 200. UP2DENT will not pay any damage compensation beyond the limits set forth in Section 8 below. The buyer can make claims on the basis of the warranty in this Section 7.5 only if it can produce the invoice for the respective products.

8. Liability 

8.1 UP2DENT is liable for intent or gross negligence. For slight negligence, UP2DENT is only liable if it culpably fails to fulfill an essential contractual obligation, whereas the liability is limited to the damage that is predictable and would typically occur.

8.2 The mere delivery of defective goods as such does not constitute a failure to fulfill essential contractual obligations. 

8.3 Further liability - irrespective of the legal nature of the claim made - is excluded. This applies particularly to claims based on violations of contract or tort.

8.4 UP2DENT is not liable for consequential damages, particularly due to lost profits or intangible damages. 

8.5 Claims for damages against UP2DENT are statute-barred one year after delivery of the goods, unless UP2DENT is charged with intent or gross negligence. The statute of limitations for claims based on tort remains unaffected by this.

8.6 Liability due to culpable harm to life and limb remains unaffected. This also applies to mandatory liability in accordance with the German Product Liability Act.  

8.7 Insofar as the liability of UP2DENT is excluded or limited, this also applies in respect of the personal liability of employees, staff, fee-lancers, representatives and agents of UP2DENT.

9. Cooperation in Tax Matters

The buyer shall cooperate with UP2DENT in all matters concerning tax in regard of the agreements entered into between the buyer and UP2DENT.

10. Applicable law, place of jurisdiction, severability 

10.1. Applicable law for these general terms and conditions and all legal relationships is the law of the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods. Place of performance for deliveries and payments is Cologne, Germany. The exclusive place of jurisdiction for the buyer for all disputes resulting directly or indirectly from or in connection with the contractual relationship is Cologne, Germany. The same applies if the buyer does not have a place of jurisdiction in Germany or if its place of residence or habitual abode is unknown at the time of the legal action. UP2DENT reserves the right to take legal action against the buyer at his place of residence, his registered business address or where a branch office is located.

10.2 The statutory place of jurisdiction for default proceedings remains unaffected. 

10.3 Should a provision in these general terms and conditions or a provision within the context of other agreements with the buyer be or become invalid, the validity of all other provisions in these general terms and conditions or other agreements is, in cases of doubt, unaffected.