General Sales Conditions of räder GmbH
§ 1 General Provisions, Scope of Application
(1) The present General Terms and Conditions of Sale (GTCS) shall apply to all our business relationships with our customers (hereinafter referred to as: „Purchaser“). The GTCS shall only apply if the Purchaser is an entrepreneur within the meaning of § 14 BGB (German Civil Code), a corporate body under public law or a special fund under public law.
(2) The GTCS in their respective current version shall apply as a framework agreement also in connection with future contracts concluded with the same Purchaser regarding the sale and/or delivery of movable items, without any need for us to explicitly refer to them again in each individual case. We shall at all times be entitled to amend or change our GTCS. In this case, we will immediately notify the Purchaser accordingly.
(3) Our GTCS shall apply exclusively. Any deviating, opposing or supplementary general terms and conditions of the Purchaser shall only become an integral part of the contract if and to the extent that we have explicitly consented to their application in writing. This approval requirement shall apply in any case, for example also if we, being aware of the general terms and conditions of the Purchaser, carry out the delivery to the Purchaser without reservation.
(4) Any legally relevant declarations and notifications that are to be submitted to us by the Purchaser after conclusion of the contract (e.g. the setting of deadlines, notifications of defects, declaration of cancellation or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Any statutory formal requirements and further evidence, in particular in the case of doubts regarding the legitimation of the person making the declaration, shall remain unaffected.
§ 2 Conclusion of Contract
(1) Our offers are subject to change and non-binding. This shall also apply in case we have provided the Purchaser with catalogues, other product descriptions or documents (also in electronic form), to which we reserve all ownership rights and copyrights.
(2) The ordering of the goods by the Purchaser shall constitute a binding contract offer. Unless otherwise stipulated in the order, we shall be entitled to accept this contract offer within 10 days after receipt thereof. Acceptance may either be declared in writing (e.g. by means of an order confirmation) or by delivery of the goods to the Purchaser.
(3) Images, drawings, dimensions, quality indications, colour shades are approximate values common in the industry. Deviations customary in trade, technical modifications and modifications regarding the shape, colour and/or quality shall remain reserved if such modifications and deviations are reasonable taking into account the interests of the Purchaser.
§ 3 Delivery Times and Delay in Delivery
(1) The delivery dates stated by us are - subject to individual agreements - in principle non-binding and indicate only the earliest date from which delivery is to be expected. As a rule, the delivery time is approximately 1 week after conclusion of the contract. We shall be entitled to make partial deliveries to a reasonable extent. Outstanding partial deliveries with a goods value of less than EUR 30.-- will be cancelled.
(2) If we are unable to comply with binding delivery times for reasons for which we are not responsible (non-availability of performance), we shall immediately inform the Purchaser accordingly and, at the same time, notify him of the prospective new delivery time. If the service is also not available within the new delivery time, we shall be entitled to fully or partly withdraw from the contract; any counter-performance already provided by the Purchaser is to be refunded by us immediately. A case of non-availability of performance in this sense shall in particular be the failure of our supplier to deliver goods in time if we have concluded a congruent hedging transaction, if neither we nor our suppliers are at fault or if we, in individual cases, are not obligated to procure the goods.
(3) The occurrence of a delay in delivery on our part is determined in accordance with the statutory provisions. In any case, however, a reminder is required from the Purchaser.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Unless otherwise agreed, delivery shall be made ex warehouse, which is also where the place of performance is. At the request and expense of the Purchaser, the goods will be shipped to another place of destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (particularly transport companies, dispatch route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods is passed to the Purchaser upon delivery at the latest. However, in the case of a sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already be passed upon delivery of the goods to the forwarding agent, the freight carrier or any other person or company charged with the execution of the shipment.
(3) In case the Purchaser is in default of acceptance, fails to cooperate, or in case our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to claim compensation for the damages thereby incurred, including additional expenditures (e.g. storage costs).
§ 5 Prices, Terms of Delivery and Payment
(1) Unless otherwise agreed in individual cases, our currently valid prices at the time of conclusion of the contract shall apply, namely ex warehouse, plus statutory VAT and a packaging at rate of 1.5 % of the net list price.?(2) In the case of a sale by delivery to a place other than the place of performance (§ 4 Par. 1), the Purchaser shall bear the transport costs ex warehouse and, if applicable, the costs of a transport insurance requested by the Purchaser.
(a) Deliveries within Germany?If the order value is less than EUR 100,--, we charge a surcharge of EUR 20,-- for small quantities. For new customers, an initial minimum order value of EUR 2,000.-- shall apply.?For shipments within Germany, a at rate for transport costs amounting to 3% of the respective order value, but at least EUR 7.50, shall be deemed to have been agreed upon. From a net order value of EUR 1,000.-- upwards, delivery within Germany will be free of charge.?(b) International Deliveries?International deliveries will be charged on request and according to time and e ort. Any customs duties, fees, taxes and other public charges shall be borne by the Purchaser. (3) We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance, they become the property of the Purchaser; except for pallets.
(4) The purchase price is due and payable without deduction within 30 days of invoicing and delivery of the goods. However, even within the framework of an ongoing busi- ness relationship, we shall be entitled at any time to make a delivery in whole or in part only against prepayment. We declare a corresponding reservation at the latest with the placing of the order. If payment is made within 8 days, 3 % discount will be granted; if the Purchaser grants us a Sepa direct debit mandate, we grant 4 % discount.
(5) Upon expiry of the aforementioned payment period, the Purchaser shall be in default. During the default period, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to assert further damages caused by default. Our entitlement to commercial maturity interest (§ 353 HGB – German Commercial Code) against merchants shall remain unaffected.
(6) The Purchaser shall only be entitled to rights of set-o or retention to the extent that his claim is legally established or undisputed. In the event of defects in the delivery, the Purchaser‘s counterclaims shall remain unaffected, in particular in accordance with § 7 Par. 5 sentence 2 of the present GTCS.
(7) If the Purchaser culpably falls into arrears of payment, we shall be entitled to demand payment of the entire remaining purchase price. Moreover, we shall be entitled to demand adequate security deposits to the extent of the outstanding claims. In addition, we shall have the same right to demand security deposits if it becomes apparent after conclusion of the contract that our claim to the purchase price is endangered by the Purchaser‘s inability to pay. If the Purchaser does not provide the required security deposit, we shall be entitled to withdraw from the contract. If it becomes apparent after conclusion of the contract (e.g. by ling for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the Purchaser‘s lack of ability to pay, we shall, in accordance with the statutory provisions concerning refusal of performance - and, if applicable, after the setting of a deadline - be entitled to withdraw from the contract (§ 321 BGB - German Civil Code); the statutory provisions on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of Title
(1) Until full payment of all of our current and future claims arising from the purchase contract and from an ongoing business relationship (secured claims), we retain the title to the sold goods.
(2) Before the full payment of the secured claims has been effected, the goods subject to the retention of title may neither be pledged to third parties nor assigned as a collateral. The Purchaser shall immediately inform us in writing if and insofar as there is any access of third parties to the goods belonging to us.
(3) The Purchaser shall arrange for adequate insurance of the goods that are subject to retention of title at his own expense, and shall provide us with respective proof at any time upon request.
(4) In the event the Purchaser breaches his contractual obligations, in particular in the event of non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the returning of the goods on the basis of the retention of title. The demand for returning of the goods shall not simultaneously constitute the declaration of withdrawal; in fact, we are entitled to only demand the returning of the goods and to reserve the right to withdraw from the contract. If the Purchaser does not pay the purchase price due, we shall only be entitled to assert these rights after unsuccessfully having set the Purchaser a reasonable deadline for payment, or if the setting of such a deadline is not required by the statutory regulations.
(5) Until further notice, in accordance with lit. (b) the Purchaser shall be entitled to resell and/or further process the goods subject to the retention of title in the ordinary course of business. In this case, the following provisions shall additionally be applicable.
(a) The Purchaser already now assigns to us as a security all claims against third parties arising from the reselling of the goods or products. We accept the assignment. The obligations of the Purchaser described in Par. 2 shall also apply in view of the assigned claims.
(b) Besides us, the Purchaser shall remain entitled to collect the accounts receivable. We undertake not to collect the accounts receivable as long as the Purchaser fulfils his payment obligations towards us, no application for the opening of insolvency proceedings has been led, no other lack of solvency of the Purchaser exists and we have not asserted the retention of title by exercising a right in accordance with Par. 4. However, if this is the case, we may demand that the Purchaser discloses the assigned claims and their debtors to us, provides all information necessary for collection, hands over the respective documents and notifies the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the authority of the Purchaser to resell the goods that are subject to retention of title.
(6) The Purchaser shall grant us or our agents access to the goods that are subject to retention of title at any time during normal business hours and shall give us the opportunity to inspect and mark them appropriately.
(7) In case the realisable value of the securities exceeds our claims by more than 10 %, we shall at our discretion release securities upon the request of the Purchaser.
§ 7 Purchaser‘s Claims based on Defects
(1) The Purchaser‘s rights in the event of material and legal defects (including wrong and short delivery as well as improper assembly or faulty assembly instructions) shall be governed by the statutory provisions, unless otherwise agreed in the following. The special statutory provisions on nal delivery of the goods to a consumer (recourse against the supplier according to §§ 478, 479 BGB – German Civil Code) shall in any case remain unaffected.
(2) The basis of our liability for defects is above all the agreement made concerning the quality of the goods. All product descriptions which, subject to the provisions of § 2 Par. 3, are the subject matter of the individual contract shall be deemed to be an agreement on the quality of the goods. Inasmuch as a quality has not been agreed upon, it is to be assessed in accordance with the legal regulations whether a defect exists or not (§ 434 Par. 1 sentences 2 and 3 BGB - German Civil Code).
(3) Claims based on defects asserted by the Purchaser are conditional to the Purchaser having complied with his statutory obligations to inspect and give notice of defects (§§ 377 HGB - German Commercial Code). If a defect becomes apparent at the time of delivery, inspection or later, we must be notified immediately in writing. In any case, obvious defects must be reported in writing within 10 days of delivery, and defects that are not recognizable during the inspection must be reported in writing within the same period of time after discovery. If the Purchaser fails to properly inspect the goods and/or notify us of defects, our liability for defects not reported or not notified in time is excluded in accordance with the statutory provisions.
(4) In case the delivered item is defective, we may at first choose whether to provide supplementary performance by either correcting the defect (remedy) or by providing a defect-free item (replacement delivery). Our right to refuse the supplementary performance in accordance with the statutory provisions shall remain unaffected.
(5) We shall be entitled to make the owed supplementary performance dependent on the fact that the Purchaser pays the purchase price due. The Purchaser, however, is entitled to retain a part of the purchase price which is appropriate in relation to the defect.
(6) The Purchaser shall grant us the time and opportunity necessary for the owed supplementary performance and shall in particular hand over the rejected goods for the pur- pose of examination. In the case of a replacement delivery, the Purchaser shall return to us the defective item in accordance with the statutory provisions. The supplementary performance shall neither contain the disassembly of the defective item nor its re-assembly if we originally were not obligated to conduct such assembly.
(7) The expenses incurred with respect to the examination and supplementary performance, in particular transportation costs, travel costs, labour costs and material costs (not: disassembly and assembly costs) shall be borne by us, provided that a defect does indeed exist. If, however, the Purchaser‘s demand for recti cation of a defect turns out to be unfounded, we may request the Purchaser to reimburse the costs incurred in this respect, unless the lack of defectiveness was not evident to the Purchaser.
(8) If the supplementary performance has failed, or if a reasonable time limit to be set by the Purchaser for the supplementary performance has expired unsuccessfully, or if such a time limit is dispensable according to the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price. However, in the case of an insignificant defect there exists no right to withdraw from the contract.
(9) Any claims of the Purchaser for damages or compensation for futile expenses shall only exist in accordance with § 8 and are otherwise excluded.
§ 8 Other Liability
(1) Unless otherwise stated in the present GTCS including the following provisions, we shall be liable in accordance with the relevant statutory provisions in the case of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages - irrespective of the legal basis - within the scope of fault-based liability for culpable intent and gross negligence. In the case of simple negligence we shall, subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in our own affairs), only be liable?a) for damages resulting from injury to life, body or health,?b) for damages resulting from a not inconsiderable violation of a material contractual obligation (obligation, the fulfilment of which enables the proper implementation of the contract in the rst place, and on the compliance with which the contractual partner regularly relies and may rely). In this case, however, our liability shall be limited to the compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability described in Par. 2 shall also apply to breaches of duty by or for the bene t of persons whose fault we are responsible for in accordance with the statutory provisions. They do not apply if we have fraudulently concealed a defect, or if we have assumed a guarantee for the quality of the goods, and for claims of the Purchaser in accordance with the Product Liability Act (Produkthaftungsgesetz).
(4) Due to a breach of duty that does not consist of a defect, the Purchaser can only withdraw from the contract or terminate the contract if we are responsible for the breach of duty. Apart from that, the statutory requirements and legal consequences shall apply.
§ 9 Statute of Limitation
(1) By way of derogation from § 438 Par. 1 No. 3 BGB (German Civil Code), the general limitation period for claims arising from material and legal defects is one year from delivery.
(2) The afore-cited limitation period of commercial law shall also apply with respect to contractual and non-contractual claims for damages of the Purchaser which are based on a defect to the goods, unless the application of the regular statutory limitation (§§ 195, 199 BGB – German Civil Code) would result in a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall in any case remain una ected. Apart from that, any claims for damages asserted by the Purchaser in accordance with § 8 Par. 2 sentence 1 and sentence 2 a) shall exclusively be governed by the statutory limitation periods.
§ 10 Product Presentations, Rights to Advertising Materials, including Images
(1) The Purchaser shall have access to our catalogues and advertising materials, including product images of the goods he has purchased, via our website.
(2) Unless otherwise agreed, the Purchaser is obligated to use advertising materials, including images, for the presentation of our goods exclusively in a design made available to him for this purpose.
(3) The Purchaser shall not be entitled to edit or modify advertising materials, especially images.
(4) For the duration of the distribution of our goods, the Purchaser shall be entitled to use advertising materials, including product photographs of the goods he has purchased. In this context, we grant the Purchaser a non-remunerated, geographically limited, non-transferable, non-exclusive right, which is revocable at any time, to reproduce, distribute and publish our photographs on the Internet for the purpose of advertising the contractual products in the media listed below:
(a) print media (advertisements, supplements, brochures)?(b) Internet and social media (advertisements, own online shop not located on the marketplace of a third party)?Insofar as images may be used in social media, the authorization is limited to the use in connection with the advertising of goods from the own online shop and the own shop of the Purchaser.?(5) The posting of images in image search engines or in marketplaces of third parties is not permitted. In particular, the Purchaser is not permitted to grant third parties rights of use to the images.
§ 11 Choice of Law and Place of Jurisdiction, Partial Invalidity
(1) The present GTCS and all legal relationships between us and the Purchaser shall be governed by the laws of the Federal Republic of Germany to the exclusion of the international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CSIG). The conditions and e ects of the retention of title in accordance with § 6 are subject to the law of the respective storage location of the item if, under said law, a choice of German law is inadmissible or invalid.
(2) If the Purchaser is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a corporate body under public law or a special fund under public law, the exclusive – also International – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Bochum. The same shall apply if the Purchaser is a businessman within the meaning of § 14 BGB (German Civil Code). However, we shall also be entitled to institute legal proceedings at the Purchaser‘s general place of jurisdiction.
(3) Should any provision of the present GTCS be or become invalid, the validity of the other provisions shall not be a ected thereby.