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1.1. These General Terms of Sale (AGB) apply for any and all quotes and contracts concluded vis-à-vis consumers within the sense of Section 13 BGB [German Civil Code], as well as vis-à-vis companies within the sense of Section 14 BGB, a corporate body under public law or a legal entity under public law within the sense of Section 310 subsection 1 sentence 1 BGB on the part of Sortimo International GmbH including any and all ancillary services, consultation and information which we render and/or conclude on the vendor/contractor side, as well as contracts and services which are based on orders concluded via our platform “www.mySortimo.de“ (hereinafter referred to as “platform”). In connection with commissioning car decals via our decal configurator (mySortimo graphics) under www.mySortimo.de/graphics the „Special Business Terms for mySortimo graphics of Sortimo International GmbH“ („Besondere Geschäftsbedingungen für die Beauftragung zur Fahrzeugbeklebung der Sortimo International GmbH“, which can be downloaded under www.mySortimo.com/terms-conditions shall apply.
1.2. A consumer is any natural person who concludes a legal transaction for purposes which can be neither assigned to a commercial nor independent professional activity.
1.3. A businessman natural or legal person or an incorporated partnership which upon concluding a legal transaction acts in exercising its commercial or independent professional activities.
1.4. Customers within the sense of these General Terms and Conditions are not only consumers, but also businessmen.
1.5. Our General Terms and Conditions shall apply exclusively. By placing an order/ordering by the Buyer/Client (Customer) these General Terms and Conditions (AGB) shall be deemed to be acknowledged and shall thus become a constituent part of the contract. No contradicting or deviating terms of the Customer shall apply, even if we have not separately contradicted to their application in the individual case.
1.6. These General Terms and Conditions (AGB) shall also apply even if we deliver the goods to the Customer without reservation or render services on behalf of the Customer in the event of being aware of any conflicting terms or deviating terms from these General Terms and Conditions (AGB) of the Customer.
1.7. Any individual agreements made in the individual case with the Customer shall in any case be deemed to have priority over these General Terms and Conditions (AGB). With regard to the contents of such agreements, a written contract and/or written confirmation on our part shall, however, be decisive.
1.8. These General Terms and Conditions (AGB) shall apply regularly also for any and all future contracts which we concluded with the Customer on the vendor/contractor side.
2. Quotes, quote documents, information and consultation
2.1. Our quotes shall be at all times deemed to be subject to change and non-binding, in so far as any such have not been explicitly classified as binding.
2.2. We shall only be bound to binding quotes, if the contract is concluded by the point in time stated in the quote, at the latest within a period of two weeks after receipt of the quote by the Customer. We shall be authorised to accept the Customer’s contract offer set forth in the assignment and/or order within two weeks or to reject acceptance thereof without stating any reason for our decision. In the latter case, no contract shall be deemed to be concluded with us. The Customer’s offer shall be accepted on our part if we confirm the contract and/or order within the deadline in writing or if a corresponding delivery is executed.
2.3. The contract shall be concluded under the condition that the delivery shall not take place or only take place in part, in the event of an incorrect self-delivery or self-delivery contrary to the specifications. This shall only apply in the event of non-delivery not being justified by us and of us having concluded a concrete matching cover transaction with the due care required. We have undertaken any and all efforts to procure the goods. Otherwise the compensation shall be refunded without undue delay. In the event of such non-availability or only partial availability of the goods, the Customer shall be informed thereof without undue delay.
2.4. Templates and samples shall be deemed to be non-binding. Constructions can be modified by us in so far as reasonable, i.e. in so far as such complies with customer specifications or if the deviation is only marginal and thus the usability of the goods or service for the contractually intended purpose is not impaired as a result. Furthermore permissible are reasonable customary deviations or deviations performed on the grounds of legal regulations or representing technical improvements, as well as the replacement of components by similar parts, in so far as such do not impair the usability of the delivery or service for the contractually agreed purpose.
2.5. Any and all specifications on suitability, possible use and regarding the subject matter of our goods/services shall be rendered to the best of our knowledge and shall only be deemed to be approximately applicable, unless the usability of the delivery or goods for the contractually intended purpose requires an exact conformance. The afore-mentioned specifications only represent our experience as a rule and are not deemed to be guaranteed characteristics of state. The Customer shall in so far not be released from convincing itself of the suitability of the goods/services for the contractually intended purpose of use and its contractually agreed property by performing its own tests.
2.6. The Customer agrees to a further use and reproduction of drawings, plans, models, templates, patterns, tools, production means, dimensions, weights and similar performance data which have been handed over to us by the customer on our part and – if necessary for the specific contract – also by surrendering any such to a third party. If the values specified by the Customer are modified, the Customer agrees to inform us thereof in writing without undue delay.
3. Contract conclusion in connection with orders via the platform (mySortimo)
3.1. The products on the platform represent legally non-binding quotes and serve as request to submit a quote (invitatio ad offerendum).
3.2. An electronic order process is provided to submit a quote for the purpose of concluding a contract via the platform. After completing the order process the Customer submits a legally binding quote for conclusion of a purchase contract concerning the goods in the basket by clicking the button „order with obligation to pay“. The Customer is then immediately informed by email on the receipt of order (order acknowledgement). This order acknowledgement also contains these General Terms and Conditions (AGBs) and information for the Customer.
3.3. The purchase contract is not concluded with the receipt of the order acknowledgement – this only documents the receipt of the Customer’s order by us – it is only concluded when we have sent a confirmation of the contract by email (order confirmation) or with the delivery of the goods. We are entitled to accept the contract offer lying in the order or to reject the order without having to state any reasons for our rejection. In the latter case no contract shall be concluded with us.
4. Prices, shipping costs
4.1. The respectively valid Sortimo list/catalogue price at the point of contract conclusion shall be decisive for our prices.
4.2. If a delivery as per the Sortimo list/catalogue price takes place more than four reasons after conclusion of the contract for reasons which shall not be justified by us and if the catalogue price has risen/dropped up to that point in time, the new list/catalogue price shall be deemed to be agreed. If the change in price represents more than 5% of the agreed net price, both contracting parties shall be entitled to rescind the part of the contract in concern.
4.3. For want of a special agreement, our prices shall be deemed to be ex works and/or ex storage without loading in the works/storage and without packaging. The Customer shall bear the costs for packaging, loading, transport, import or export customs, fees, taxes, and other public duties as well as insurance premiums.
4.4. Statutory value-added tax (VAT) vis-à-vis companies shall not be included in the price. It shall be due and payable in the respective statutory amount and shall be itemised separately from other expenses on the invoice.
4.5. With regard to prices within the platform the following shall apply in deviation of the afore-mentioned terms:
4.5.1. All payment obligations resulting from a contract conclusion of the platform shall be owed in Euros. All prices shall be end prices and shall in particular include the statutory valid value-added tax in the respective amount.
4.5.2. Unless specified otherwise, delivery and shipping costs are not contained in the prices of the platform. The delivery and shipping costs are specified as flat-rate shipping costs which can be accessed by directly clicking the information “plus shipping” in the quote and which are displayed additionally in the course of the electronic order process. Costs for packaging are included in the respectively displayed flat-rate shipping costs.
5. Shipping, packaging and transfer of risk
5.1. The goods/services shall be delivered ex works/storage, which is also the place of fulfilment. If we also owe the installation, the place of fulfilment shall be the location at which the installation is due. Upon the Customer’s request the goods shall be shipped to a different destination (sale by delivery to a place other than the place of performance), whereby the type of shipping and packaging shall be subject to our best judgement.
5.2. The goods/services shall be shipped at the risk of the entrepreneur itself, even if we bear the transport costs by way of exception. We shall not be obliged to conclude a transport insurance policy. At the point of delivering the goods/services to the shipping agent, at the latest when the goods/services leave our works or warehouse, in the case of third-party deals upon leaving the works or warehouse of our subcontractor, the risk shall pass on to the Customer even in the case of freight prepaid, FOB or CIF transactions.
5.3. We agree to take back packaging delivered with the goods/services exclusively within the scope of our statutory obligations. Acceptance of packaging does not include return shipment and the costs incurred in this respect. Disposal of the packaging shall be billed to the Customer as per our cost price. In so far as return of packaging to us takes place, we shall not agree to share the costs for disposal and a take-over of disposal costs shall not be deemed to be owed by us.
5.4. The entrepreneur shall be obliged to comply with its statutory obligations regarding examination and notice of non-conformity (§§ 377, 381 HGB) in this respect. If a defect is identified in the examination or at a later point in time we shall be notified thereof in writing without undue delay. The notification shall be deemed to be submitted without undue delay if it is performed within seven working days, whereby timely mailing shall suffice with regard to sending the notification in due time. Irrespective of this examination and notice of non-conformity the Customer shall notify any apparent defects in writing within a scope of seven working days as of delivery, whereby timely mailing shall suffice with regard to sending the notification in due time. If the Customer fails to duly examine the goods/services and/or to notify any defects, warranty for the defect not notified shall be excluded.
5.5. The duties set forth in clause 5.4 shall also refer to the Customer, if the goods/services in concern were delivered to or with a third party.
5.6. The following regulations shall apply for theplatform in deviation of the afore-mentioned terms:
5.6.1. In the case of payment by credit card or with payment providers, such as PayPal or sofortueberweisung.de we shall ship the goods at the latest within 3 working days after receipt of the payment confirmation by the payment provider, unless nothing to the contrary has been noted with regard to the availability of the goods in the product description.
5.6.2. In the case of payment by means of „cash on delivery" shipment shall take place within one to three working days unless nothing to the contrary is documented in the product description with regard to the availability of the goods.
5.6.3. With regard to compliance of the shipping date solely the date of hand-over of the goods by us to the shipping agent shall be deemed to be decisive.
5.6.4. The goods/services shall be delivered to the delivery address specified by the customer in the order process. We shall only send goods to the countries listed in the respective article description. Goods/services cannot be shipped to any other countries.
5.6.5. The risk of accidental loss and accidental deterioration of the goods shall pass on to the Consumer at the point of hand-over of the goods to the Consumer.
The risk of accidental loss and accidental deterioration of the goods shall pass on to the shipping agent, forwarding agent or any other person or institution to whom/to which the task of shipping the goods/services has been assigned.
5.6.6. It shall be considered as a hand-over if the Customer defaults in accepting the goods/services.
6. Schedules, delivery/performance
Our delivery or performance schedules shall be deemed to be non-binding, unless nothing to the contrary has been agreed upon. Delivery schedules shall commence with the contract conclusion. Delivery schedules and deadlines shall be deemed to be complied with at the point of notification that our goods/services are ready for delivery. If the customer fails to pay upon request of due advance and down payments or fails to provide the information required to execute the order, then the delivery schedules and deadlines shall be extended by an appropriate period.
6.1. Acts of God (unforeseen circumstances and occurrences for which we are not responsible which could not have been avoided with the due care of a prudent businessman, e.g. industrial disputes, war, fire, transport impediments, lack of raw materials, official measures) or operational interruptions, not only at our premises, but also at our suppliers‘ works which temporarily prevent us independent of negligence from delivering the goods/services at the point such become due, shall extend delivery schedules and deadlines by the duration of such impediment. If such disturbances lead to a delay of more than four months, the Customer shall be entitled to rescind the contract.
6.2. In the event of non-compliance of delivery schedules designated by us as binding, the Customer shall be authorised to grant us a – regular - appropriate period of grace of at least two weeks. If the goods/services are not delivered by the end of the period of grace, the Customer shall have the right to rescind the contract. The goods/services shall be deemed to have been delivered in due time as soon as the goods/services have left our works or storage or that of our subcontractor prior to the end of the deadline. We shall substitute default damage solely in compliance with the regulations set forth in clause 12.
6.3. We shall be entitled to effect partial deliveries in an appropriate consideration of our customer’s interests, if the partial delivery is usable for the customer within the scope of the contractual purpose of use of the goods/services, and if the remaining delivery is guaranteed and if no substantial expenses or additional costs arise on the part of the Customer. If the goods/services are delivered in parts, no further shipping costs shall be charged besides the single flat-rate shipping costs.
7. Right of revocation for consumers placing orders via the platform
Consumers, i.e. any natural person concluding the contract for a purpose which can be neither assigned to its commercial nor independent professional activity (Section 13 BGB), shall principally have a statutory right of revocation when placing a long-distance sale. Information according to the statutory sample is given in the following clause 7.1. Clause 7.2 contains exceptions to the terms concerning the right of revocation. Clause 7.3 contains a sample cancellation form:
7.1. INFORMATION ON RIGHT OF REVOCATION
Right of revocation
You have the right to revoke this contract within two weeks without having to state any reasons for your decision. The period of revocation is two weeks as of the date on which you have or a third party specified by you and which is not the shipping agent has taken over possession of the goods.
In order to exercise your right of revocation you must inform us by means of an unambiguous declaration (e.g. by means of a letter sent by mail, telefax or email) stating your decision to revoke this contract. You may use the sample revocation form. This is, however, not obligatory. Send it to:
Sortimo International GmbH Dreilindenstraße 5 86441 Zusmarshausen Tel: +49 8291 / 850 - 0 Fax: +49 8291 / 850 - 250
To comply with the revocation deadline all you need to do is to send the notification that you desire to exercise your right of revocation prior to the end of the revocation deadline.
Consequences of revocation If you revoke this contract, we shall refund all payments which we have received from you including the delivery costs (with the exception of the additional costs resulting from the fact that you selected a different type of delivery other than the low priced standard delivery offered by us) without undue delay and within fourteen days at the latest as of the date on which we received your notification that you desire to revoke this contract. For this repayment we shall use the same means of payment which you used for the original transaction, unless a deviating means of payment was expressly agreed upon with you; in any case no fees shall be charged to you for this repayment.
We are entitled to hold back payment until we have received the goods or until you have documented proof of the fact that you have shipped the goods, depending on which is the earlier point in time.
You shall send back the goods without undue delay or hand over the goods to the following address and in any case at the latest fourteen days as of the date on which you informed us of your revocation of the contract:
Sortimo International GmbH Dreilindenstraße 5 86441 ZusmarshausenThe deadline shall be deemed to be complied with if you send the goods before the fourteen-day deadline has expired.
You shall bear the direct costs for reshipping the goods.
You shall only assume the costs for a possible loss in value of the goods if this loss in value results from improper handling of the goods when examining the quality, properties and functions of the goods.
END OF INFORMATION ON RIGHT OF REVOCATION
7.2. Exceptions regarding the right of revocation
The right of revocation shall not exist in the following cases
• Contracts on the delivery of goods, if these on the grounds of their property and condition are inseparably mixed with other goods after delivery. • Delivery of goods which were produced pursuant to customer specifications or are explicitly made according to customer requirements, for example, but not exclusively, car decals, individual configurations of mobile storage systems for vehicles etc. • Services, if Sortimo has rendered these in full scope and the customer has explicitly acknowledged and approved prior to placing the order that Sortimo can commence rendering the service and that the Customer has thus forfeited its right of revocation with the complete contract fulfilment.
7.3. Sample revocation form
Sortimo International GmbH Dreilindenstraße 5 86441 Zusmarshausen Email: firstname.lastname@example.org Fax: +49 8291 / 850 – 250
I/we (*) herewith revoke the contract concluded by me/us (*) concerning the purchase of the following goods (*) / provision of the following service (*):
• Ordered on (*) / received on (*) • Name of Consumer(s)(*) • Address of Consumer(s) (*) • Signature(s) of Consumer(s) (only in the case of notification on paper) (*) • Date
(*) delete if inapplicable
8. Voluntary contractually agreed 30-day right of return
8.1. In addition to the statutory right of revocation pursuant to clause 7 we shall grant all customers on a voluntary basis a 30-day right of return for orders placed via our platform.
8.2. Exceptions of the voluntary contractually agreed right of return:
8.2.1. The following customer groups are excluded from the voluntary contractually agreed right of return:
• Sortimo Station Partners • Sortimo Installation Partners • International Sortimo Contract Dealers / Importers
8.2.2. The right of return shall not exist in the following cases:
• Contracts concerning the delivery of goods if these, on the grounds of their property, have been inseparably mixed with other goods after delivery. • Delivery of goods which were produced pursuant to customer specifications or are explicitly made according to customer requirements, for example, but not exclusively, car decals, individual configurations of mobile storage systems for vehicles etc. • Services, if Sortimo has rendered these in full scope and the customer has explicitly acknowledged and approved prior to placing the order that Sortimo can commence rendering the service and that the Customer has thus forfeited its right of revocation with the complete contract fulfilment.
8.3. The deadline shall commence upon receipt of the goods. The deadline shall be deemed to be complied if the goods are sent off in due time.
8.4. You shall only assume the costs for a possible loss in value of the goods if this loss in value results from improper handling of the goods when examining the quality, properties and functions of the goods/services.
8.5. The Customer shall principally bear the costs for reshipping the goods/services. It is possible to send back the goods/services using free of charges using the Refund Request Form https://www.mysortimo.de/en/returnOrder.
8.6. If you decide to exercise your Refund Request right, we shall return payment of the purchase price for the goods - with the exception of the delivery costs – without undue delay and at the latest within 14 days calculated as of the date on which the goods are returned to us. For this repayment we shall use the same means of payment which you used for the original transaction, unless a deviating means of payment was expressly agreed upon with you; in any case no fees shall be charged to you for this repayment.
8.7. The statutory right of revocation which applies to the Consumer is not affected hereby and shall remain in existence irrespective thereof.
9. Payment terms
9.1. All of our payment claims shall be immediately due and payable upon receipt of the invoice and/or in the case of the platform at the point of concluding the contract. A payment shall be deemed to have been made in due time as soon as the amount is credited to our account and unconditionally available.
9.2. Vis-à-vis entrepreneurs we shall be entitled to demand appropriate down payments.
9.3. In the case of orders via our platform the customer can settle payment of the purchase price plus the flat-rate shipping cost („total price“) by credit card, PayPal or by prepayment. We shall reserve the right to exclude individual payment methods. In the case of payment by credit card your account shall be debited as a rule within 72 hours after completing your order.
If you select prepayment we shall state our bank details in the payment request and shall deliver the goods after receipt of your payment.
The total price shall be due and payable within ten days after receipt of our purchase data by email, in so far as no other date has been agreed upon and/or nothing to the contrary results from the selected payment method, if applicable.
The goods shall not be shipped until the total price has been credited to our bank account or until we have received a payment notification through the payment providers stated. The goods shall be delivered to the delivery address you stated. Delivery is only possible to the countries stated in the respective description of the article. Goods cannot be sent to any other countries.
9.4. If the Customer defaults in payment or if justified doubts arise with regard to the Customer’s financial solvency, we shall be entitled to demand immediate payment of claims resulting from the respective contractual relationship (including other individual contracts for which the same frame agreement applies) and/or to demand a security deposit prior to delivering the goods/services, to retain outstanding deliveries/services from the respective contractual relationship with the Customer in full or in part or to rescind the respective existing contractual relationship in full or in part.
9.5. In the case of default in payment we shall be entitled vis-à-vis Consumers to demand default interest in the amount of 5 percentage points above the basic interest rate unless the customer is able to document a minor damage or we are able to demand a higher damage.
9.6. The Customer is only entitled to set-off rights, rights of retention and rights to refuse performance if its counterclaims have been established as final and absolute, are uncontested or acknowledged. The Customer is in so far furthermore only entitled to exercise a right or retention if its counterclaim is based on the same contractual relationship. In the case of defects in delivery the Customer’s claims, in particular pursuant to clause 11.7 shall not be affected thereby.
9.7. We reserve the right to payments to settle the eldest due claim plus the default interest and costs incurred in connection with such claim, in the order of sequence of costs, interest and claim.
10. Reservation of title, reservation of copyright, secrecy
10.1. We shall reserve the ownership in all of our goods/services (goods subject to retention of title) until all claims from the business relationship with the Customer have been settled. This shall also apply to objects which we have installed in or handed over within the scope of works services. The reservation of title vis-à-vis the Customer shall also remain in existence if the claims have been included in a current account (current account) and the balance has been drawn and acknowledged (current account reservation). The transfer of risk pursuant to clause 5 shall remain unaffected thereby.
10.2. The customer shall treat our goods subject to retention of title with due care. The Customer shall be obliged sufficiently insure our goods subject to retention of title at its own expense against damage resulting from fire, water and theft at the gross invoice amount and shall assign its claims for compensation from these insurance contracts to us in the amount of the gross invoice value. The assignment is herewith agreed to.
10.3. The entrepreneur is entitled to resell the goods delivered by us exclusively in the scope of due and proper business transactions as long as it complies with its contractual obligations vis-à-vis us and as long as a payment claim at least in the amount of the purchase cost is incurred from resale. In the case of resale of the goods subject to retention of title by the entrepreneur, it shall only deliver the goods to its clients up to the complete payment under the effectively agreed retention of title (forwarded retention of title), whereby the current account reservation agreed upon in clause 10.1 shall not apply to the forwarded retention of title. The entrepreneur shall assign to us in advance all of its claims vis-à-vis its clients or third parties from the resale of our goods subject to retention of title, also of any claims to which it may possibly be entitled in future according to the gross invoice amount of our deliveries or our co-ownership share. We herewith accept such an assignment.
In the case of processing, combining, mixing and/or blending our goods with third-party products, the assignment of claims shall only apply in the ratio of the gross invoice value of our goods subject to retention of title as against the value of the third-party goods sold. The entrepreneur shall be entitled to collect the claim even after such an assignment. Our right to collect the claims ourselves shall remain unaffected thereby. We shall, however, be obliged to refrain from collecting the claim as long as the entrepreneur complies with his payment and other obligations vis-à-vis us in a due and proper form. If, however, the entrepreneur defaults in payment we shall be entitled to notify the clients of the entrepreneur of the assignment of the claim or the retention of title and to collect the claims ourselves.
The entrepreneur shall immediately pay the proceeds from the further sale of our goods subject to retention of title to us, in so far as our claims are or become due and payable. In the case of cessation of payment, insolvency application on the assets of the entrepreneur or non-fulfilment of its obligations vis-à-vis us the authorisation to resell the goods subject to retention of title and to collect the claims vis-à-vis the entrepreneur’s clients shall automatically cease to exist and shall pass on to us. The entrepreneur shall be obliged upon request to inform us of any assigned claims and their debtors and to provide us with any and all necessary information required for collection thereof as well as with the relevant documents and to in particular hand over the business books.
10.4. Processing, connecting, mixing and/or blending the goods subject to retention of title by the entrepreneur shall always be performed for us without any obligation resulting therefrom. In connection with processing, connecting, mixing and/or blending with objects not belonging to us we shall become co-owners in the new object(s) in ratio of the value of the goods subject to retention of title and the other objects at the point of time of processing, connecting, mixing and/or blending the goods. If the entrepreneur acquires the sole ownership in the new goods, it shall be deemed to be agreed that the entrepreneur shall transfer to us the co-ownership in the goods according to the pro rata gross invoice amount. The entrepreneur shall thus keep the sole ownership and/or co-ownership in the goods on our behalf. For any goods created as a result of processing, connecting, mixing and/or blending the same shall apply for the rest as to the goods subject to retention of title delivered under reservation of title.
10.5. In the case of any non-contractual conduct of the Customer, in particular in the case of default in payment, we shall be authorised to withdraw from the contract (exploitation) and to take back our not yet paid goods subject to retention of title. The Customer shall in so far have no right of possession of the goods. After taking back the goods we shall be entitled to sell them. The proceeds resulting from the sale shall be offset with the Customer’s liabilities minus the costs for exploitation. The Customer shall be entitled to document proof that the utilisation caused inappropriately high costs; the appropriate difference shall, in such case, n to have to be borne by the Customer.
10.6. The Customer shall not be permitted to pawn or assign our goods subject to retention of title by way of collateral. The goods delivered by us shall be expressly excluded from assignments by way of collateral of complete warehouses. In the case of forced sales of collaterals or seizures the Customer shall draw attention to the existing retention of title and shall inform us immediately in writing thereof so that the appropriate countermeasures can be undertaken. The Customer shall warrant for any and all judicial and extrajudicial costs arising on our part in so far as no substitute can be achieved.
10.7. We shall be obliged to release the collaterals we are entitled to upon the Customer’s request in so far as the realisable value of the collaterals exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the collaterals to be released.
10.8. If the goods subject to retention of title are delivered to a location beyond the territory of the Federal Republic of Germany or are transported by the Customer to such an address, the following shall apply with precedence over clauses 10.1 to 10.7: The Customer shall ensure that our retention of title is effectively protected in the country in which the goods are located or to which the goods are to be transported. If certain acts are required in such a case (e.g. a special labelling or a local registration), the Customer shall ensure that this is done on our behalf and at its expense. If our cooperation is required, the Customer shall inform us thereof without undue delay. In addition, thereto the customer shall inform us of any and all material circumstances which are significant within the scope of maximum protection of our ownership. The Customer shall in particular provide any and all documents and information which are required for the purpose of enforcing our rights resulting from ownership. Er wird uns insbesondere alle Unterlagen und Informationen zur Verfügung stellen, die zur Durchsetzung unserer Rechte aus dem Eigentum notwendig sind. The terms set forth in this clause 10.8 shall apply accordingly if, according to the legal system in place at the location at which the goods are stored, a retention of title cannot be effectively agreed upon, and shall secure a legal position on our behalf which protects our interests and claims in the same effective way or in another suitable way, in so far as this is legally possible.
10.9. We shall reserve title and all copyright and exploitation rights in drawings, plans, models, templates, patterns, tools, production means and similar objects as well as in confidential data/ideas which are made available to the customer or which are paid by us. These objects and data /ideas may not be surrendered to any third party or otherwise made accessible without our previous approval. The reproduction of such objects and data/ideas shall only be permissible within the scope of requirements of the contractual relationship as well as in consideration of copyright regulations. Third parties which come into contact with the objects and data/ideas according to the terms of this contract shall be obliged accordingly by the Customer.
10.10. The customer shall be obliged to treat all of our (not apparent) technical, economic and personal procedures and conditions becoming known to it in connection with contractual relationships with us or with our offers, ancillary services, consultation and information – at all times as confidential and – even in any case of doubt – and even to treat such as business or company secrets and to ensure that third parties (even family members or employees not involved with such matters) do not obtain knowledge thereof without being authorised accordingly. The obligation if secrecy shall also continue to exist beyond the termination of the contractual relationship.
10.11. If the customer culpably violates the obligation of secrecy it shall be obliged to pay for each individual case of violation a contractual penalty of 5% of the net order value to us. We shall reserve the right to enforce further damage claims in addition thereto.
11. Defects and warranty
11.1. Warranty shall be based on the statutory regulations – subject to the following regulations.
11.2. The goods ordered via the platform may deviate marginally from the goods displayed on the Internet due to the possibilities of technical presentation and within a reasonable scope, in particular deviations in colour may occur. An additional guarantee regarding the goods delivered by us shall only exist with regard to the goods if this has been explicitly specified in the contractual confirmation for the respective goods.
11.3. Entrepreneurs shall not be authorised to enforce warranty rights on the grounds of an insignificant defect. In the case of a material defect we shall decide vis-à-vis entrepreneurs on the type of supplementary performance.
11.4. Entrepreneurs are shall examine the goods without undue delay upon receipt. The goods delivered shall be deemed to be approved by the entrepreneur if we have not been notified of any defect without undue delay, at the latest within 7 calendar days after delivery of the goods/service and/or acceptance of the goods in writing. After commencing further processing by the entrepreneur no right to notify a defect shall exist. Concealed defects shall be notified without undue delay at the latest within 7 working days after the date of identification. If the Entrepreneur fails to notify a defect in due time, the goods/service shall be deemed to be approved and accepted as free of defects. Pursuant to clause 5.4 section 377 HGB shall apply.
11.5. For the purpose of protecting their warrant rights Consumers shall notify defects in writing within two weeks as of the data of delivery in the case of apparent defects which become apparent so that they are noticed by non-professional average customers without special attention, whereby it is sufficient to send the notification by mail in due time. Damage claims of the Consumer on the grounds of faulty delivery pursuant to clause 12 shall remain unaffected thereby.
11.6. After receipt of the notification of defects the goods/service shall be forwarded to us upon our request for inspection, in so far as this is possible without inappropriate expense or unless we have agreed in writing to another procedure. In the case of an unfounded notification of defect the customer shall bear the costs for our expenses resulting from the investigation.
11.7. If the Customer demands supplementary performance this shall be limited to an elimination of the defect. Section 439 subsection 2 BGB shall remain unaffected thereby. If supplementary performance fails or a deadline to be set in writing for supplementary performance by the Customer has lapsed without success, or can be dispensed with pursuant to the statutory regulations, the Customer shall be permitted to rescind the contract or reduce the price. In the case of an insignificant defect no right of rescission shall exist.
11.8. We are entitled to reject the elimination of defects or a replacement delivery, as long as the customer does not fulfil its due obligations vis-à-vis us. The enforcement of defence to actions for breach of warranty of quality of title and appropriate rights of the Customer concerning rejection of performance or retention of title shall remain unaffected thereby.
11.9. Warranty shall be excluded if our goods/services are not used appropriately by the Customer or connected without our approval with unsuitable parts (e.g. not provided by us or not corresponding to the operating instructions) or are installed in such and the elimination of defects is thus rendered impossible or made unreasonably difficult. In any case the Customer shall refund the addition costs arising as a result of eliminating the defects to us. Furthermore, warranty shall be excluded in the case of wear and tear according to the specifications and in the event of errors resulting from improper intervention and negligent treatment, in particular if the Customer fails to comply with our operating and maintenance instructions
11.10. The period of limitation for defects vis-à-vis companies in the case of new goods is one year as of transfer of risk. The period of limitation shall not commence anew if – vis-à-vis companies within the scope of warranty of defects a substitute delivery takes place. The rights of the Entrepreneur as set forth in Sections 478, 479 BGB shall remain unaffected thereby.
The reduction of the warranty period to one year shall not apply if the replacement regulation is based on a damage to body or health on the grounds of a defect we have to justify or on the grounds of gross negligence on our part or by our vicarious agents. Irrespective thereof we shall warrant pursuant to the Product Warranty Act.
11.11. The afore-mentioned limitations of warranty shall not apply in the case of a lacking guaranteed property or in the event of intentionally concealing a defect. For the rest the claims of the Customer shall be limited to damages and/or replacement of futile expenses within the scope of warranty pursuant to clause 12..
12. Warranty, compensation
12.1. Damage claims of the Customer, irrespective of the legal ground on which such are based, and arising directly or indirectly in connection with the order, delivery or use of our goods/services or by utilising our works services shall be deemed to be excluded. This exclusion of warranty shall not apply in the event of violating an essential contractual obligation (cardinal obligation). Cardinal obligations are obligations the fulfilment of which enables the due and proper execution of the contract and the fulfilment of which the contracting partners reliable trust in and are entitled to trust in, also including rights and obligations which the contract shall grant according to its contents and purpose.
12.2. Our liability shall in any case be limited to replacement of the typical contractual and foreseeable damage. Substitute (damage) claims of the Customer vis-à-vis our company which are based on contractual penalty claims of the Customer’s clients shall in no case be deemed to be foreseeable and typical contractual claims as outlined above. We shall endeavour at all times to prove that a minor damage has been suffered.
12.3. In so far as the damage has been covered by an insurance policy taken out by the Customer for the damage circumstance in concern, we shall only warrant for the Customer’s disadvantage associated therewith, e.g. higher insurance premiums or interest disadvantages up to the point of settlement of the claim by the insurance company.
12.4. The above-mentioned liability exclusions and limitations shall not apply to damages arising out of death, injury to body or health which are based on an intentional or negligent violation of duty on our part or by one of our representatives or one of our vicarious agents. The afore-mentioned liability exclusions and limitations shall furthermore not apply to any other damage based on an intentional or gross negligent violation of duty by us or by one of our statutory representatives or one of our vicarious agents or by the lack of a guaranteed property or on the grounds of fraudulently concealing a defect.
13. Liability regardless of negligence or fault / product liability
If claims are raised upon us by third parties on the grounds of liability regardless of negligence or fault, in particular on the grounds of product liability, the Customer shall enter into liability in so far as it would also be directly liable. With regard to Customer measures on damage prevention, e.g. product recalls, our liability – in so far as legally possible – shall be deemed to be excluded.
14.1. By way of derogation from section 438 subsection 1 No. 3 German Civil Code [BGB; Bürgerliches Gesetzbuch] the general period of limitation for claims on the part of the entrepreneur resulting from material and legal defects shall amount to one year as of the date of delivery. In so far as acceptance has been agreed, the period of limitation shall be deemed to commence as of the date of acceptance.
14.2. The afore-mentioned period of limitation for contracts on the sale of goods shall also apply to contractual and non-contractual damage claims on the part of the Customer which are based on a defective condition of the goods, unless the application of regular statutory limitation (sections 195, 199 BGB) in the individual case would lead to a shorter period of limitation.
14.3. The periods of limitation for product warranty law shall remain unaffected. Statutory special regulations for limitations of claims for defects regarding claims based on third-party rights (section 438 subsection 1 No. 1 BGB) in the case of fraudulent intent on the part of the Vendor (section 438 subsection 3 BGB) and with regard to claims for recourse of the supplier in end deliveries to a Consumer (section 479 BGB) shall also remain unaffected. In the case of damage claims pursuant to clause 12 the statutory period of limitation shall remain.
15. Data protection
We shall collect, save and utilise customer data within the scope of handling contracts. With regard to the details we refer to the Data Privacy Terms which are deposited on our website and can be downloaded at any time.
16. Alternative litigation (Art. 14 para. 1 ODR-VO and §36VSBG)
The European Commission provides a platform for online litigation (OS) in the case of disputes. You will find this platform under http://ec.europa.eu/consumers/odr/. In this context we are additionally obliged to provide you with our email address. You will reach our company under the email address email@example.com. We are willing to participate in extrajudicial arbitration proceedings.
17. Applicable law, place of fulfilment, place of jurisdiction
17.1. The business relations between us and the Customer and in connection with the contract concluded shall be exclusively subject to the law of the Federal Republic of Germany to the exclusion of international standard law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
17.2. Place of fulfilment for any and all obligations resulting from the contractual relationship shall be Zusmarshausen and/or the location of the branch office with which the Customer has concluded the contract
17.3. Exclusive place of jurisdiction for any and all disputes resulting directly or indirectly from the contractual relationship shall be Augsburg, in so far as the Customer is a merchant within the sense of the German Commercial Code [HGB; Handelsgesetzbuch]. This shall also apply irrespective of the property as merchant if the Customer shifts its place of abode or permanent dwelling to a foreign country, if its place of residence or permanent dwelling is not known at the point of filing the claim or if our claims are enforced by means of a collection procedure. We shall also be entitled to sue the Customer at the Customer’s general place of jurisdiction.
Status: January 2019
1. Scope and contract partners