a) Deliveries, services and offers of the Seller
are exclusively aimed at entrepreneurs within the meaning of § 14 BGB (German
Civil Code) and are made exclusively on the basis of these Terms of Sale
and Delivery. They apply to all agreements concluded between the
parties and cover offers, advice and other contractual services.
b) Deviations from these Terms of Sale and
Delivery shall only become effective when the seller confirms them in writing.
General conditions of the Buyer are invalid, and are hereby rejected. The
Seller’s Terms and Conditions of Sale and Delivery shall also apply if the
Seller renders performance with full knowledge of conflicting or different terms
and conditions of Purchaser. Neither a failure to object thereto nor payment or
acceptance of the goods shall be a recognition of any third-party general terms
c) Where there is a framework agreement between
the Buyer and the Seller, these Terms and Conditions of Sale and Delivery shall
apply to both the framework agreement and the individual purchase
d) By placing an order, the Buyer legally declares
that he is an entrepreneur within the meaning of § 14 BGB (German Civil Code).
Orders from consumers as defined by § 13 BGB (German Civil Code) can
neither be accepted nor processed.
2. Conclusion of Contract, Contract Amendments and Written
a) All offers by the Seller remain free and
non-binding until the conclusion of the contract and are subject to the
provisional sale, unless explicitly agreed otherwise.
b) The contract comes into force when the Seller
confirms in writing or carries out the Buyer’s order within 2 weeks after
receipt. Unless the Seller does not provide any other written confirmation, his
invoice shall be deemed as confirmation of the order, unless the delivery itself
has been made.
c) In case of written orders, the Seller shall go
by the item number and not by the description. If the buyer is a trader, the
written confirmation by the Seller is solely decisive for the content of orders
and agreements, unless the Purchaser immediately objects in writing. This
applies in particular to verbal or telephone orders and agreements. Notification
to the Seller is in any case no longer deemed to have been submitted immediately
if it does not reach the Seller within seven days after the Buyer has received
the Seller’s written confirmation.
d) Any amendments or additions to the agreement,
with the exception of a change in the terms and conditions of sale and
delivery for the future after notification to the Buyer pursuant to item 1,
require written confirmation by the Seller to be effective. This also applies to
the deviation from contractual requirements for the written form.
3. Delivery and delivery times
a) The goods are delivered (Incoterms 2020) ex
works Elmshorn unless otherwise expressly agreed in writing between the
b) Proper and timely self-deliveries remain
reserved if the Buyer is a trader.
c) In the absence of special instructions from the
Buyer, the choice of the route of transport shall be made at the discretion of
the Seller without liability for the least expensive and/or safest means of
d) All agreements and confirmations of delivery
times or deadlines require the written form to be effective. Condition of
compliance with delivery time is the Buyer’s punctual performance of contractual
obligations, in particular making agreed payments and if applicable, the
provision of securities.
e) In case of a delay in delivery, the Buyer shall
only be entitled to assert any claims for damages if a reasonable period of
grace granted after the occurrence of default has fruitlessly expired and the
Seller is responsible for the delay.
f) Goods ready for consignment must be promptly
retrieved on the day of delivery. If the dispatch is delayed due to
circumstances for which the buyer is responsible, he shall be in default with
the date of the notification of readiness for dispatch.
4. Force majeure
In cases of “force majeure”, i. e. unforeseen difficulties resulting from a
lack of raw material, limitations in and the suspension of operations including
unforeseeable interruptions in production affecting the Seller or his suppliers,
flood, storm and inclement weather, governmental as well as official orders
and/or controls, total or partial failure of crop growth and other events
for which the Seller is not responsible, entitle the Seller to postpone the
announced or agreed delivery date accordingly. The seller is responsible for
notifying the Buyer immediately of such circumstances as soon as the Seller has
gained knowledge of such. If a delayed performance due to “force majeure” cannot
be reasonably expected of a party, then the respective party shall be
entitled to withdraw from the contract.
5. Transport insurance
The Buyer is free to take out additional transport insurance. In this case,
the Seller will charge an additional 1 % of the net purchase price of all items
as insurance costs. If no transport insurance is desired, the Seller shall
delivers exclusively at the Buyer’s risk (there is no entitlement to claim for
transport damage). The seller shall indicate current toll fees
6. Partial quantities
In general, the Seller delivers in whole packaging units. The Seller shall
provide half of the packaging units with a 20 % surcharge. This only applies to
the accessories range. The Seller reserves the right to change the packaging
7. Initial deliveries
Initial deliveries are only made on COD or prepayments.
8. Price, costs and minimum order value
a) The price is EXW FCA Elmshorn (Incoterms 2020)
from the place of business of the Seller or directly from the delivery warehouse
Elmshorn or the seat of the sub-supplier plus any value-added tax, unless
individually otherwise agreed in writing. Not included in the price are postage
charges or tolls as well as other taxes and fees of public or private third
parties. The same applies to freight costs, unless otherwise expressly agreed.
Insurance costs, are only included in the price indicated, if transport
insurance according to item 5 has been taken out. The corresponding costs will
be invoiced separately.
b) In Germany, the minimum order value is €
150.00. The Seller delivers freight-free carriage paid from a net order
value of € 250.00 The minimum order value for overseas countries is € 500.00.
The Seller may also change or increase any minimum quantity surcharges or flat
fees if his own costs for the processing small quantities or his own costs for
shipping and packaging increase. However, this shall not apply retroactively to
delivery agreements previously concluded. Unless otherwise agreed, the Seller
shall adhere to the prices stated by him 30 days from date of notification. Any
price increases resulting from taxation, customs duties, freight rates, foreign
exchange rates or any other taxes or increases resulting from official measures
after conclusion of the contract shall always be borne by the
c) For sales on call-off, the Seller is bound to
the confirmed price for a period of three months from the date of the order
confirmation. The Seller is entitled to charge the prices applicable at the time
of the call-off, for calling off goods after the expiry of this period.
9. Return of packaging material
a) Insofar as the Seller is obliged under the
Packaging Regulation to take back transport, service or sales packaging free of
charge, the place of delivery is the Seller’s place of business.
b) The return of packaging can only take place
during the Seller’s business hours. Larger quantities are to be announced
beforehand. The returned packaging must be clean and free of foreign matter.
Otherwise, the Seller is entitled to compensation for additional costs incurred
10. Retention of title
a) The Seller retains the title to the delivered
products until full payment of all debts from the business relationship
with the buyer has been made.
b) Processing or refining of the reserved goods by
the Buyer always takes place on behalf of the Seller without any
obligations arising from it. The Seller retains ownership of the new items in
their respective finished or processed states. If the Seller’s reserved goods
are processed, handled, blended, mixed or combined with other products for which
he has no ownership over, the Seller shall be entitled to co-ownership of the
new item in the ratio of the invoice price of the reserved goods to the invoice
price of the other products.
c) The Buyer may sell the reserved goods in the
normal course of business in the sole ownership or co-ownership of the seller;
He is not permitted to pledge, to secure ownership or to secure his security.
The Buyer hereby assigns to the Seller all claims arising from the resale of the
goods entitles to the Seller through processing, refining, blending, mixing or
combining the resulting products. This shall also apply if the products
are sold together with other products not belonging to the Seller at a
total price. If a third party has acquired ownership or co-ownership rights to
the products as a result of processing, refining, blending, mixing or combining,
the Buyer also assigns any claims as of now and in advance which arise against a
third party to the Seller. Assignments within the meaning of this item always
take place only up to the amount of the invoice price of the reserved goods.
The Buyer is authorized to collect the assigned
claims until such time as is permissible. The Seller shall accept the
assignments of the Purchaser already provided for in this clause. The Seller
undertakes to release the collateral to which he is entitled under the above
provisions, at his option, at the Buyer’s request insofar as its value exceeds
the claims to be secured by more than 10 %.
d) If the validity of retention of title is
dependent on the cooperation by the Buyer, for example, in the case of
registrations which are required by the law of the Buyer’s country, the Buyer
shall must perform such acts.
e) If the Buyer is in arrears with a payment, the
Seller may refuse to allow the Buyer to use the reserved goods completely or at
his discretion in part, e. g. only the sale or further processing, etc.
f) If the Buyer meets the objective requirements
for the duty to file for insolvency, the Buyer must refrain from using the goods
under retention of title in any way, without being requested to do so. The Buyer
must immediately notify the Seller of the stocks of reserved goods. In this
case, the Seller is also entitled to withdraw from the contract and to demand
the surrender of the reserved goods. If the reserved goods have been refined,
processed, blended, mixed or combined with other products, the Seller is
entitled to demand their surrender to a trustee; the buyer must inform all
co-owners of the reserved goods with their company or name, address and
co-ownership share. The same shall apply mutatis mutandis to claims which
have been assigned to the Seller in accordance with the preceding items; in
addition, the Buyer shall send the names and addresses of all debtors as
well as the documents proving the claims against them to the Buyer in a copy
without being request to do so.
11. Product features
a) The Seller shall deliver the products in a
quality which corresponds to the first choice according to the Seller’s sorting
guidelines. Commercial requirements regarding with respect to cleanliness and
beauty of the surface can be required of this product.
b) Due to different materials and manufacturing
processes, differences in colour can often occur in a series depending on the
light conditions. Production-related deviations in dimensions, contents,
weights, shades of colour and in the surface texture which are within the scope
of commercial tolerance, are not deficiencies. Due to the printing technique
used, deviations in colour between illustrations in brochures/catalogues
c) Cleaning agents that are acidic and/or
corrosive can cause damage if used improperly.
d) The Seller reserves the right to make minor
alterations in versions, colours and designs.
e) Goods classified as seconds and/or inferior do
not meet the Seller’s sorting guidelines and do not meet the usual requirements
for design and quality.
f) Typical wearing (e. g. metal abrasion or
abrasion by an abrasive) or diminishing surface properties are unavoidable
according to the state of technology and do not constitute a defect.
12. Defects and warranty
a) The Buyer must examine the goods immediately
after delivery at his expense and notify the Seller in writing without delay, at
the latest after an exclusion period of seven days, of possible defects,
incorrect deliveries or reduced quantities. Any hidden defects must be reported
to the Seller in writing immediately after discovery. Otherwise, the goods are
b) Deliveries over or under quantity of up to 5 %,
do not constitute a defect.
c) The warranty period is one year from delivery.
The statutory periods of limitation in the event of a delivery regress pursuant
to Sections 478, 479 BGB remain unaffected by this regulation. Claims based on
defects and reimbursement of expenses due to gross negligence, intent or breach
of material contractual obligations (please see the regulations in item 13
“Liability”) are not limited through this. This shall also not affect claims for
compensation for damage to life, body or health or product liability.
d) Declarations with which the Buyer asserts any
warranty rights (requests for subsequent fulfilment, declarations to rescind,
request for a reduced purchase price and/or compensation) shall be effective in
a) Any compensation claims against the Seller and
its legal representative and assistants are excluded, unless intentional or
gross negligence or breach of a material contractual obligation can be proven. A
material contractual obligation in this sense is defined as any obligation which
is essential to ensure proper execution of the contract and on whose compliance
the Buyer can regularly rely on.
b) If no intent can be proven, liability shall be
limited to the typically foreseeable damage.
c) The above limitations of liability and
disclaimer do not apply to liability according to the Product Liability Law or
in cases of injury to life, body or health.
d) Claims for reimbursement of expenses by the
customer pursuant to § 284 BGB are excluded in so far as a claim for
compensation for the damage is excluded instead of the performance according to
the above regulations.
a) If this agreement does not expressly stipulate
different payment terms, payment must be made no later than 10 days after
the date of the invoice. The Buyer is considered to be in default after expiry
of this period. During the default period, the Buyer shall pay interest on the
money owed at a rate 8 % higher than the base rate. The Seller reserves the
right to prove higher damages due to the arrears and to enforce them. Reminder
fees and expenses of collection as well as other costs shall be borne by the
b) The Buyer is only entitled to off-set his
counter claims if they have been determined to be legally binding, undisputed or
recognized by the Seller. Rights of retention can only be asserted if they are
based on the same legal relationship.
c) If, after the conclusion of the contract, it
becomes apparent that the Seller’s claim to payment is jeopardised by a lack of
the Buyer’s ability to meet the obligation, all outstanding balances shall
become due immediately; the buyer’s objections, which do not consist of a later
payment date, are hereby not restricted.
d) If the Seller is required to make a
pre-payment, he can refuse the service rendered to him if, after conclusion
of the contract, it becomes apparent that his claim to return service is
jeopardised by a lack of the buyer’s ability to execute performance. The right
to refuse performance shall cease to apply if the return service is
rendered or collateral is provided for the Seller may specify a reasonable
deadline during which the Buyer shall render a service step by step at his
discretion or provide collateral. After the effectless lapse of this period the
Seller may rescind the contract.
15. Place of performance, jurisdiction, applicable law
a) The place of performance
for all disputes arising from the business relationship is Elmshorn. If the
purchaser is a trader, public sector corporation or a special fund under public
law, an additional court of jurisdiction for all disputes arising from this
contract shall be Hamburg. The claimant is entitled, alternatively, to call the
court of arbitration of the Chamber of Commerce of Hamburg. If this is the case,
the court of arbitration shall be solely responsible. The court of arbitration
is Hamburg; the language of proceedings is German.
b) The law of the Federal Republic of Germany
shall apply. The provisions of the United Nations Convention on Contracts for
the International Sale of Goods shall not apply.
16. Data protection
The Seller shall be entitled to process and store the data relating to the
Buyer in connection with the business relationship – even if these are from
third parties – in the sense of the Federal Data Protection Act (BDSG) and to
process and store them by third parties commissioned by him. Non-certified
translation – only the German version shall be binding.