Terms and conditions
§1 – Area of validity
- Our terms of delivery and payment (general terms and conditions) apply exclusively. We reject conflicting terms or the purchaser’s deviation from our general terms and conditions, unless we had expressly consented to their validity in writing. Our terms also apply if we unconditionally carry out the delivery to the purchaser with knowledge of conflicting terms or of the purchaser’s deviation from our terms.
- Our general terms and conditions only apply to contractors within the meaning of § 310, paragraph 1 of the German Civil Code.
- Our general terms and conditions also apply to all future business dealings with the purchaser.
§2 – Offer, conclusion of contract
- The purchaser declares the binding offer on our order form upon conclusion of the purchase contract. Our employees, who take the order for the customer, are not authorized to accept the offer.
- The order is accepted as valid only through our written confirmation or by carrying out the order within a reasonable period of time.
- All verbal, and particularly all subsidiary- and supplemental agreements made by phone, including such agreements made beyond carrying out the order, always require our separate written confirmation for validity. Our employees are not authorized to conclude supplementary agreements or to accept requests for changes to the order.
- We are entitled to reduce the order placed to the extent that our products, in particular specific materials or designs, are not delivered by our suppliers, or the production of individual items is cancelled due to the low orders on hand. The purchaser acknowledges and accepts as customary in a line of business order cancellations or reductions of the order size occurring due to the circumstances listed in no. 6. The purchaser cannot assert any rights against us here. We are merely obligated to immediately notify the purchaser of the circumstances specified in no. 6. Once the purchaser has access to the corresponding notification, the order cancellation or reduction becomes effective.
§3 - Payment
- Our prices apply, plus applicable legal sales tax and shipping charges from the warehouse in Haar at Munich.
- Invoices are to be paid within 30 days from the invoice date. We give a 4% cash discount for payments made within 10 days of the invoice date. Payments or the agreed payment method (credit card, advance payment, debit procedure, etc.) have to transferred free of charge. Decisive for the punctuality of payment is the day of crediting to the account specified in the invoice.
- Payments with the effect of discharging an obligation can only be made at the specified factor in the invoice to which we have assigned our claims from our business connections. We are authorized to assign claims from business connections.
- Checks are only accepted according to the previous agreement on account of performance. For check payments, the date of the unconditional check cashing is decisive; that is, at the earliest 14 days after submission.
- For orders placed by new customers, we can always demand that our delivery take place only with advance payment. We are also authorized to only deliver with advanced payment, C.O.D., or by security deposit, if it becomes evident after the agreement is concluded that our claim to consideration in endangered by the purchaser’s deficient capacity.
- The purchaser only has a right to setoff or retain claims if his counter-claims are recognized by declaratory judgment, undisputed, or recognized by us.
§4 - Delivery, passing of risk
- The delivery takes place from the warehouse Haar at Munich, and thus delivery is considered "ex works."
- We are authorized to deliver goods in partial shipments, as is customary in a line of business.
- Provided that nothing else is agreed to, the delivery takes place at the purchaser’s expense in boxes by a shipper of our choice. If the purchaser desires a different kind of packing or type of delivery, he has to pay all costs arising from such a different delivery or packaging.
- The goods are shipped uninsured, provided that nothing different is agreed to.
- The danger and risk of transport is transferred to the purchaser with the transfer of the item purchased to the shipper, carrier or other company hired for transport.
§5 - Delivery time
- The start of the delivery time specified by us assumes the punctual and orderly fulfillment of the purchaser’s obligations, as well as the clarification of all technical questions.
- The start of the delivery time specified by us is also with the reservation that our own delivery is correct and punctual.
- We do not conclude any transactions for delivery by a fixed date.
- If the purchaser delays in accepting delivery, or negligently violates other collaborative obligations, we are entitled to demand reimbursement of damages, including any additional expenses. We reserve the right to make more far-reaching claims.
- As far as the preconditions of paragraph 4 are present, the risk of accidental loss or destruction of the goods sold is transferred to the purchaser at the point in time in which the purchaser delays accepting delivery or defaults on his debt.
- We are liable according to the legal provisions, if as a result of our delay in delivery the purchaser asserts that his interest in the further fulfillment of the order has ended. We are further liable according to legal provisions, if the delay in delivery is based on an intentional or grossly negligent breach of contract by us or our representatives; we are to take the blame for neglect by our representatives or vicarious agents. If the delay in delivery is not based on an intentional breach of contract by us, our liability for damages is limited to foreseeable, typically occurring damages. We are also liable according to the legal provisions to the extent that our delivery delay is based on the negligent breach of an essential contractual obligation; but in this case, liability for damages is limited to foreseeable, typically occurring damages. In other respects, we are liable in the case of delay in delivery for each full week of delay in the scope of a flat-rate compensation for default in the amount of 3% of the declared value of goods, however at most not more than 15% of the declared value of goods. Additional legal claims and rights of the purchaser due to delay in delivery remain unaffected.
- The punctuality of the delivery depends exclusively on the time of transfer of goods by us to the shipping company.
§6 - Exclusiveness
- The purchaser is not entitled to sell the goods to resellers without our consent. The goods may only be sold in the branches/businesses named in the orders for which the goods were ordered. For a violation of this rule, we have a claim to compel the purchaser to refrain and a claim for damages. The purchaser allows us to inspect the selling areas during the customary business hours.
- Moreover, the purchaser is not entitled to sell the goods on Internet auction sites, such as Ebay, without our consent.
- The purchaser is entitled to sell the goods in his own online shops.
§7 - Liability for defects
- We are to be notified immediately of complaints and defects. The written notification must reach us at the latest 10 days after the purchaser’s receipt of goods; for concealed defects, 10 days after the discovery. The regulation of §§ 377, 378 of the German Commercial Code (GCC) is not affected. Our employees are not authorized to accept such notifications of defects.
- Small, customary or technically unavoidable deviations of goods in quality, dimension, weight, outfitting or design are part of the ordinary condition of goods and do not represent defects. In this respect, only the manufacturer’s product description is valid as agreed to; besides that, public expressions, acclaim or the manufacturer’s advertising do not represent information on the conditions of the goods. We do not give guarantees in the legal sense. Articles marked as "second choice" exhibit (slight) color deviations and material- or manufacturing defects. Our prices take invoicing into account. These deviations explicitly represent an agreed to condition.
- We are only obligated to accept product returns for inspecting defects if the purchaser notified us earlier in writing with the invoice number and invoice date. An acknowledgment of the purchaser‘s complaint of defects is not connected with the acceptance of product returns.
- So far as a defect of the purchased item exists, we are authorized to choose subsequent performance in the form of removing defects or delivering a new defect-free product. In the case of removing defects, we will pay the expenses only to the amount of the purchase price. If the subsequent performance fails, the purchaser is then authorized to choose revocation or reduction of the purchase price.
- We are liable according to legal provisions, if the purchaser claims damages that are based on intent or gross negligence, including intent and gross negligence of our representatives and vicarious agents. As long as we are not blamed for any intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
- We are liable according to the legal provisions if we negligently breach an essential contractual obligation; but in this case, the liability for damages is limited to the foreseeable, typically occurring damage.
- The liability due to negligent injury to human life or health remains unaffected; this also applies to compulsory liability according to The Product Liability Act.
- So long as nothing different is regulated in the aforementioned, the liability is excluded.
- The limitation period for defects is 12 months, calculated from the passing of risk. The limitation period in the case of a delivery recourse according to §§ 478, 479 of the German Civil Code remains unaffected.
§8 - Other liability
A more far-reaching liability for compensation than provided in §§ 5 and 6 is – not taking into account the legal nature of the claim asserted – excluded. This applies especially to claims culpa in contrahendo, because of other neglects of duty or claims in tort to compensation for property damage according to § 823 of the German Civil Code.
§9 - Delay in payment, purchaser’s compensation
- We are not obligated to make any further delivery from any current contract if the purchaser does not pay invoice amounts due, including penalty interest. In this case, we are also authorized to make each additional delivery from any current contract dependent upon advance payment or the provision of collateral.
- In case of a delay in payment, the period allowed for payment is cancelled for goods already delivered. The invoices in question immediately become due for payment when the cash discount authorization ends.
- If the purchaser defaults in paying an invoice and does not pay despite a reasonable setting of a time limit, we are authorized to sell the undelivered goods elsewhere and to demand a flat-rate claim for damages amounting to 30% of the selling price (without sales tax). It is up to the purchaser to prove that less or no damage resulted for us.
- If the purchaser repudiates the contract, declares his withdrawal from the contract without permission, or if the contract is not performed due to another reason within the purchaser’s realm, we are authorized to demand flat-rate compensation amounting to 30% of the selling price still open. It is up to the purchaser to prove that less or no damage resulted for us.
- We reserve the right in the case of paragraphs 3 and 4 to claim a larger damage.
§10 - Reservation of title
- We reserve the title of goods until payment of all invoices from the business connection with the purchaser. We are authorized in case of the purchaser’s delay of payment to demand the return of reserved goods without requiring a revocation of the contract or a fixing of a time limit. However, the purchaser is entitled to avert this action by fully paying all outstanding invoices up till the reserved goods are collected. After taking back the goods, we are authorized to sell them on the private market, as is customary in the industry. The utilization proceeds are charged to the purchaser’s liabilities according to the details of the following paragraph, minus reasonable utilization costs.
- In case of the enforcement of a reservation of title, we are authorized to separately store, label or collect the goods at the purchaser’s expense, as well as to prohibit any access to the goods. If we take back the goods based on the reservation of title, the purchaser is obligated for the return at his own expense; he is liable for the reduced value, the costs of return and our lost profits. The purchaser renounces claims from the property.
- The purchaser is entitled to resell the goods in the proper course of business. He now transfers to us all debts in the amount of the invoice value that he is entitled to from the resale to customers or third parties. We accept the transfer. The purchaser also remains authorized to collect debts after the transfer. Our authorization to collect the debts ourselves remains unaffected in this case. However, we will not collect the debt as long as the purchaser fulfils his payment obligations from the collected proceeds, is not in default, does not stop payments and does not file for bankruptcy. But if this is the case, we can demand that the purchaser informs us of the transferred debts and their debtors, provides all necessary information for collection, gives us the associated documents, and notifies the debtors of the transfer.
- The purchaser has to inform us immediately about debt enforcement measures of third parties for the retained goods or for the transferred debts by handing over all necessary information and documents for the safeguarding of rights.
- With cessation of payments, filing for or commencing a bankruptcy proceeding, or if the purchaser agrees to the non-transferability of the debt, the right to resell and use the reserved goods, as well as the authorization to collect transferred debt, expires. The direct debt authorization likewise expires with a check- or draft protest.
§11 - Place of Performance and Jurisdiction
- Place of jurisdiction for both parties and for all mutual and future claims from the business association is our headquarters in 85540 Haar at Munich. However, we also reserve the right to take proceedings against the purchaser at his general place of jurisdiction.
- Place of performance for all contractual obligations of both parties is 85540 Haar at Munich, unless differences emerge from the order confirmation.
§12 - Choice of law
For all transactions the law of the Federal Republic of Germany applies, including the commercial customs and technical practices valid in Germany. The UN Sales Law does not apply here. The German text version of these general terms and conditions is always decisive.
Stand: July 2017