1. Scope
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 and conditions.
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 agreements.
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 Form
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 parties.
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 shipping.
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 separately.
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 units.
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 Purchaser.
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 during disposal.
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 considered accepted.
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 writing.
13. Liability
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.
14. Payment
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 Buyer.
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.