General Sales Conditions of räder GmbH
§ 1 Scope, form
(1) These General Terms and Conditions of Sale (GTS) apply to all our business relations with our customers ("Buyer"). The GTS shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) Unless otherwise agreed, the GTS in the version valid at the time of the Buyer's order or, in any case, in the version most recently communicated to him in text form, shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
(3) Our GTC apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions (GTC) of the Buyer shall only become an integral part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example, even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's GTC.
(4) Future amendments to the GTS shall be offered to the Customer in text form no later than two months before the proposed date effective. The Customer shall be deemed to have given his consent unless he has notified us of his rejection before the proposed date effective of the amendment.
(5) Individual agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall in all cases take precedence over these GTS. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
(6) Legally relevant declarations and notifications of the Buyer in relation to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in text form (e.g. e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected.
(7) References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTS.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve ownership and copyrights.
(2) The order of the goods by the buyer is considered a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 10 days of its receipt by us.
(3) The acceptance can be declared in text form (e.g. by order confirmation) or by delivery of the goods to the Buyer.
(4) Illustrations, drawings, dimensions, quality specifications, colour shades are approximate values customary in the industry. Deviations customary in the trade, technical changes as well as changes in form, colour and/or quality are reserved, if such changes and deviations are reasonable under consideration of the Buyer's interest.
§ 3 Delivery period and delay in delivery
(1) In principal the delivery dates stated by us are - subject to individual agreements - basically non-binding and only indicate from when a delivery can be expected at the earliest. As a general rule, the delivery time is approximately one week after conclusion of the contract.
(2) If we cannot meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already provided by the purchaser. In particular, the non-availability of the service in this sense shall be deemed to be the non-timely delivery by our supplier, if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure the service in individual cases.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the Buyer is required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5 % of the net price (delivery value) for each completed calendar week of the delay, but in total no more than 5 % of the delivery value of the goods delivered late.
(4) The rights of the purchaser in accordance with § 8 of these GTS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be ex warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (mail order purchase). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon delivery at the latest. In the case of mail order purchases, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
(3) If the Buyer is in default of acceptance, if he fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose we are entitled to demand a lump sum compensation i. 10,00 € per calendar day, beginning with the delivery period or - in the absence of a delivery period - with the notification of readiness for dispatch of the goods to the Buyer.
(4) The proof of a higher damage and our statutory claims (in particular compensation for additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The Buyer shall be entitled to prove that we have incurred no damage at all or only a significantly lower damage than the lump sum above.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, namely ex warehouse, plus statutory value added tax and a packaging flat rate of 1.5% of the net list price.
(2) In the case of mail order purchase to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer.
(a) For deliveries within Germany, we charge a minimum quantity surcharge of € 20.00 for orders below € 100.00. An initial minimum order value of € 2,000.00 applies for new customers. A package price of € 7.95 applies for deliveries within Germany. From a net order value of € 1,000.00, delivery within Germany is free of charge.
(b) Shipment to foreign countries is carried out on request and charged according to expenditure. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) Transport packaging and all other packaging in accordance with the Packaging Ordinance will not be taken back, but will become the property of the Buyer. This does not apply to pallets.
(4) The purchase price is due and payable within 30 days of invoicing and delivery of the goods without deduction. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest when the order is placed. For payment within 8 days we grant a discount of 3 %, if the buyer gives us a company direct debit mandate we grant a discount of 4 %.
(5) Upon expiry of the above payment period, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by default. Our claim to the commercial due date interest (§ 353 HGB) against merchants remains unaffected.
(6) After the occurrence of default of payment, we shall be entitled to make the entire remaining purchase price claim due and payable and to demand appropriate securities. If the Buyer does not provide the requested security, we are entitled to withdraw from the contract.
(7) The Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter rights, in particular in accordance with § 7 Para. 6 Sentence 2 of these General Terms of Sale, shall remain unaffected.
(8) If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the Buyer's lack of ability to pay, we shall be entitled to demand appropriate security for the outstanding claims and to withdraw from the contract in accordance with the statutory provisions on refusal to perform and - if necessary after setting a deadline.
§ 6 Retention of title
(1) We reserve title to the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title ("reserved goods") may not be pledged to third parties or transferred by way of security before full payment of the secured claims. The Buyer shall notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties seize the goods belonging to us (e.g. seizures).
(3) The Buyer shall ensure appropriate insurance of the goods subject to retention of title at his own expense and shall provide us with evidence of such insurance at any time upon request.
(4) If the Buyer acts in breach of contract, in particular if he fails to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the reserved goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand the return of only the reserved goods and reserve the right to withdraw from the contract. If the Buyer does not pay the due purchase price, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
(5) Until revocation according to (b) below, the Buyer is entitled to resell the reserved goods in the ordinary course of business. In this case the following provisions shall apply in addition.
(a) The Buyer hereby assigns to us all claims against third parties arising from the resale of the reserved goods or product. We accept the assignment. The obligations of the Buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
(b) In addition to us, the Buyer remains authorised to collect the claim. We undertake not to collect the claim as long as the Buyer is not in default of payment, there is no lack of his ability to pay and we do not assert the reservation of title by exercising a right according to paragraph 4. If one of the above-mentioned cases occurs, we may revoke the Buyer's authorization to collect and demand that he informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the Buyer's authority to further sell the goods subject to retention of title.
(6) If the feasible value of the securities exceeds our claims by more than 10 %, we shall release securities of our choice at the request of the Buyer.
(7) The Buyer shall grant us or third parties commissioned by us access to the reserved goods at any time during normal business hours and shall give us the opportunity to inspect and properly mark the goods.
§ 7 Claims for defects of the buyer
(1) For the rights of the Buyer in the event of material defects and defects of title (including wrong and short delivery as well as improper assembly or faulty assembly instructions) the statutory provisions shall apply, unless otherwise provided for in the following. In all cases, the statutory special provisions shall remain unaffected in the case of final delivery of goods to a consumer, even if the consumer has processed them further (supplier recourse according to § 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by installation in another product.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions which are the subject of the individual contract or which were made public by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed upon, it shall be assessed in accordance with the statutory regulation whether a defect is present or not (§ 434 para. 1 p. 2 and 3 BGB). However, we do not assume any liability for public statements of third parties (e.g. advertising statements) which the Buyer has not pointed out to us as being decisive for his purchase.
(4) We are generally not liable for defects which the Buyer was aware of at the time of conclusion of the contract or which he was not aware of due to gross negligence (§ 442 BGB). Furthermore, the Buyer's claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 10 working days of delivery and defects not detectable during inspection must be reported in writing within the same period from the time of their detection. If the Buyer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported in time or not properly is excluded according to the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether we provide subsequent performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The Buyer shall give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the Buyer for the costs incurred as a result of the unjustified demand for the removal of defects (in particular testing and transport costs), unless the lack of defect was not recognisable to the Buyer.
(9) If the supplementary performance has failed or a reasonable period of time to be set by the Buyer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right to withdraw from the contract.
(10) Claims of the Buyer for damages or compensation for futile expenditure shall exist only in accordance with § 8, even in the case of defects, and shall otherwise be excluded.
§ 8 Other liability
(1) Unless otherwise provided for in these GTS including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages - irrespective of the legal grounds - within the scope of liability for culpability in the case of intent and gross negligence. In the case of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; minor breach of duty), for
(a) for damages resulting from injury to life, body or health
(b) for damages resulting from the violation of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply to breaches of duty by or in favour of persons whose fault we are responsible for according to statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the purchaser under the Product Liability Act.
(4) Due to a breach of duty which does not consist of a defect, the Buyer may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation period
(1) Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery.
(2) The aforementioned limitation periods of the law on the sale of goods shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages of the Buyer according to § 8 para. 2 sentence 1 and sentence 2 (a) as well as according to the Product Liability Act shall become statute-barred exclusively according to the statutory limitation periods.
§ 10 Product presentation, rights to advertising materials, including images
(1) The Buyer shall be given access to our catalogues and advertising material, including product images of the goods purchased by him, via our website.
(2) Unless otherwise agreed, the Buyer is obliged to use only advertising material, including pictures, in a design made available to him for this purpose for the presentation of our goods.
(3) The Buyer is not entitled to edit or redesign advertising material, in particular pictures.
(4) For the duration of the distribution of our goods, the Buyer is entitled to use advertising materials, including product photos of the goods he has purchased. In this context, we grant the Buyer a free, spatially limited, non-transferable, non-exclusive and at any time revocable right to reproduce, distribute and publish our photographs, in each case for the purpose of advertising the contractual products in the media listed below:
(a) Print media (advertisements, inserts, brochures)
(b) Internet and social media (advertisements, own online shop that is not on the marketplace of a third party) As far as pictures are used in social media, the authorization is limited to the use in connection with the advertising of goods from the buyer's own online shop and the buyer's own shop location.
(5) The posting of images in image search engines or in the marketplaces of third parties is not permitted. In particular, the Buyer is not permitted to grant third parties rights of use to the images.
§ 11 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these General and conditions of Sale and the contractual relationship between us and the Buyer, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The prerequisites and effects of the reservation of title in accordance with § 6 are subject to the law of the respective storage location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity 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 our registered office in Bochum. The same applies if the Buyer is a business within the meaning of § 14 BGB. In all cases, however, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Saleor a prior individual agreement or at the general place of jurisdiction of the Buyer. Priority statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected.