General terms of service
§ 1 General, Scope of Application
(1) These General Terms and Conditions (GTC) shall apply to all our business relations with our customers (hereinafter also referred to as: "Buyer"). Our customers must be entrepreneurs (§ 14 BGB), a legal entity under public law or a special fund under public law. Otherwise an order is not possible.
(2) The GTC in their respective version shall also apply as a framework agreement for future contracts for the sale and / or delivery of movable goods with the same Buyer, without us having to refer to them again in each individual case. In this case, we shall inform the Buyer immediately of any changes to our GTC.
(3) Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. 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 General Terms and Conditions.
§ 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 catalogs or other product descriptions - also in electronic form.
(2) The Buyer's order of the goods shall be deemed a binding offer of contract.
(3) We may accept the Buyer's order by sending a separate order confirmation by e-mail, fax or post within two days.
(4) When orders are placed via our online B2B store, we store the order and order confirmation and send the Buyer the order confirmation and our General Terms and Conditions by e-mail.
§ 3 Delivery period, delay in delivery
(1) If we have not agreed on another binding delivery date with the Buyer, the delivery period shall be approx. 2 - 14 days from the conclusion of the contract. Agreed delivery periods shall not commence until the Buyer has provided any information, documents, releases or has received an agreed down payment.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (for example, due to non-availability of the service or force majeure), we shall inform the Buyer of this without delay and at the same time notify the Buyer 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 refund any consideration already paid by the Buyer.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. 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 full calendar week of the delay, but in total not more than 5% of the delivery value of the delayed goods. We reserve the right to prove that the Buyer has not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.
(4) The rights of the Buyer pursuant to § 9 of these GTC 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
(1) Delivery of the goods shall be made at the Seller's discretion ex the respective domestic factory. Upon request and (unless otherwise agreed in writing) at the Buyer's expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, the Seller shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover at the latest. In the case of 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 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, even if we have assumed the costs of shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. Handover or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
(3) In the case of a sale by delivery to a place other than the place of performance, the Buyer shall bear the shipping costs from the respective domestic plant and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(4) For deliveries with an order value of EUR 250.00 or more, domestic delivery shall be free of charge. For deliveries abroad with an order value of EUR 250.00 or more, delivery shall be free German border.
(5) Packaging costs for special packaging or additional costs for accelerated transport or transport other than that provided for by the Seller at the Buyer's request shall be borne by the Buyer.
§ 5 Prices and Terms of Payment
(1) Unless otherwise agreed in individual cases, our current prices (net) at the time of conclusion of the contract shall apply, ex warehouse, plus any shipping costs. For orders placed via our print catalog and for orders placed via our website, the prices listed in the order confirmation shall apply.
(2) The minimum order value for orders within Germany is 100.00 €. For orders outside Germany, the minimum order value is € 150.00. An additional minimum order value of €50.00 applies to cosmetic items (Jofrika).
(3) We reserve the right to adjust prices appropriately if there are more than four months between the order confirmation and the agreed delivery date of the goods and there is an increase in material prices or wages, or if technical changes prove necessary.
(4) Invoices shall be paid within 30 days of the invoice date and provision or dispatch (handover to shipping company) of the goods. We grant a 2% discount for payment within 14 days from the date of invoice and provision or shipment of the goods.
(5) Upon expiration 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 applicable default interest rate. We reserve the right to assert further damage caused by default.
(6) 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 shall remain unaffected.
(7) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer's inability to pay (for example, by an application for the institution of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary, after setting a deadline - to withdraw from the contract (§ 321 BGB).
(8) New customers shall be supplied exclusively on advance payment, at least for the first year of cooperation.
(9) Invoices may be sent by mail or e-mail at our discretion. The customer agrees to receive invoices electronically. Electronic invoices shall be sent to the customer by e-mail in PDF format to the e-mail address provided by the customer for the purpose of receipt. The customer undertakes to create the technical conditions to enable him to retrieve the invoice as agreed. The customer shall notify us without delay of any change in the e-mail address designated for electronic invoicing. In the event of incorrect or culpably omitted notification of the change of the designated e-mail address, the customer shall reimburse the damage caused by the address determination. The electronic invoice shall be deemed received upon receipt of the e-mail to which the electronic invoice is attached. The customer may revoke the consent to the electronic invoice dispatch at any time in writing.
§ 6 Retention of title
(1) We retain 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 may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The purchaser shall notify us immediately in writing if and to the extent that third parties seize the goods belonging to us.
(3) In the event of conduct by the Buyer in breach of contract, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand return of the goods on the basis of the retention of title and withdrawal. If the purchaser does not pay the due purchase price, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) The Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer without being obligated thereby. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the Buyer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
(5) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.
§ 7 Claims for defects of the purchaser
(1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB).
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such, which were provided to the Buyer prior to his order or were included in the contract in the same way as these eAGB, shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed upon, it is to be judged according to the legal regulation whether a defect exists or not. We shall not assume any liability for public statements made by the manufacturer or other third parties (for example advertising statements).
(4) Insignificant or technically unavoidable deviations in quality, color, width, weight, equipment or design, as well as deviations customary in the trade, are permissible and cannot be objected to. This shall not apply if these deviations are unreasonable for the Buyer, taking into account our interests, or if we have declared in writing that the delivery will be true to sample.
(5) The Buyer's claims for defects shall be subject to the condition that he has complied with his statutory obligations to examine the goods and to give notice of defects (§ 377 HGB). If the Buyer fails to duly inspect the goods and/or give notice of defects, our liability for the undisclosed defect shall be excluded.
(6) If the delivered item is defective, the Purchaser may initially demand, at its option, rectification of the defect (subsequent improvement) or delivery of a defect-free item (replacement delivery) as subsequent performance.
(7) We shall be 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 part of the purchase price which is reasonable in relation to the defect.
(8) The Buyer shall give us the time and opportunity required 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 shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install it.
(9) If the supplementary performance has failed or a reasonable period to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the event of a significant defect, however, there shall be no right of rescission.
(10) Claims of the Purchaser for damages or reimbursement of futile expenses shall only exist in accordance with §9 and shall otherwise be excluded.
§ 8 Impossibility
If it becomes impossible for us or the Buyer to provide the delivery or service for which he is responsible, the general principles of law shall apply with the following proviso: If the impossibility is due to our fault, the Buyer shall be entitled to claim damages up to a maximum of 10% of the value of that part of the delivery or service which cannot be provided due to the impossibility. Any further claims for damages shall only exist in accordance with § 9 and shall otherwise be excluded. The Buyer's right to withdraw from the contract shall remain unaffected.
§ 9 Other liability
(1) Insofar as nothing to the contrary arises from these GTC 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 - in the event of intent and gross negligence. In the case of simple negligence we shall only be liable
(a) for damages resulting from injury to life, body or health
(b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same shall apply to claims of the Buyer under the Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular pursuant to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 10 Statute of Limitations
(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer 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 the individual case. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Purchaser's claims for damages pursuant to § 9.
§ 11 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these General Terms and Conditions and all legal relationships between us and the Buyer, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the place of our registered office in Bergisch Gladbach. However, we shall also be entitled to bring an action at the Buyer's general place of jurisdiction.