Conditions of Use
Table of Contents:
§ 1 Applicability of the terms
§ 2 Offer
§ 3 Prices, payment terms and offsetting
§ 4 Delivery, default and extension of term of delivery
§ 5 Shipping and transfer of risk with respect to merchants
§ 6 Liability for defects and other liability towards merchants
§ 7 Reservation of title
§ 8 Withdrawal
§ 9 Data storage
§ 10 Applicable law
§ 11 Place of performance and legal venue
§ 12 Final provisions
General Terms of Business As of May 2009
§ 1 Applicability of the terms
1. The following General Terms of Business form the basis of all delivery
agreements, services and offers by the Seller (Diehr and Rabenstein
Technical Wholesale Trade, owners Wolfgang Diehr and Harald
Rabenstein). In business transactions the General Terms of Business
also apply to all future business relations, even if they are not expressly
agreed to once again.
2. Divergent General Terms of Business between the parties to the
agreement shall become content of the agreement only if they have first
been expressly agreed to in writing.
3. Consumers are customers within the meaning of § 13 BGB (German
Civil Code). Merchants are customers pursuant to § 14 BGB; this
includes merchants in particular.
§ 2 Offer
The Seller's offers – also with respect to the prices listed – are subject to
change and non-binding. When ordering online, the customer's order
constitutes a binding offer to enter into a purchase agreement. The email
automatically sent through the Seller's shopping system is intended
only to inform the customer that the Seller has received your order. It is
not an order confirmation. The Seller may accept the customer's offer –
per separate, written confirmation - within 14 days.
For orders not submitted via the online shop, the order and order
confirmation shall constitute a contract.
The Seller's offers apply exclusively to the following countries:
all member states of the European Economic Area. Contracts with
customers who are residents of other countries require the express
written approval of the Seller on a case-by-case basis. Reference is
made to § 11.
§ 3 Prices, payment terms and offsetting
1. For offers made to consumers the prices are end customer prices and
include statutory VAT. For offers made to merchants the prices are net
prices.
2. Payments can only be made on our business premises or via wire
transfer to a bank account we have indicated. Technical personnel,
drivers and field service employees are not entitled to collect payments.
3. The prices stated by the Seller in the order confirmation shall govern.
4. Packaging, shipping prices, transport insurance and customs duty are
not included in the Seller's offers and will be charged separately.
5. The Buyer may offset his own claims against the Seller's claims only if
the counterclaims are undisputed or legally established. The Buyer is
also entitled to retention of goods based on counterclaims arising from
the same contractual relationship if he is a consumer.
6. Claims are due immediately if no other agreement has been reached.
In the event of default, the Seller is entitled to charge consumers 5%
interest and to charge merchants 8% above the respective base lending
rate.
7. All claims that the Seller has against merchants shall be due
immediately, irrespective of the term of any received or credited bills of
exchange, if a Buyer does not comply with a term of payment or the
Buyer breaches other contractual agreements or the Seller becomes
aware of circumstances that are likely to diminish the creditworthiness of
the Buyer. In such cases, the Seller is also entitled to demand advance
payment or security for outstanding deliveries and to withdraw from the
contract after a reasonable period of notice has been fruitless and/or in
the event of fault to demand compensatory damages. Furthermore,
reference is made to § 8 item 4.
§ 4 Delivery, default and extension of term of delivery
1. The term of delivery begins on the date of the order confirmation, but
not before complete clarification of all details of execution.
2. The agreed term of delivery shall be extended – notwithstanding the
Seller's rights with respect to default on the part of the Buyer – by the
period that the Buyer is in default of his obligations under this or a
different contract. This applies analogously if a term of delivery has been
agreed.
3.1 If the Seller cannot comply with the agreed term of delivery, it shall
notify the Buyer in a timely manner. Disruptions in its business
operations or in the case of suppliers, in particular strikes and lawful
lockouts as well as events of force majeure for which the Seller is not
responsible, the term of delivery shall be extended in accordance with
the duration of the disruption. In such cases, the Buyer is entitled to
withdraw only if he reminds the Buyer of the agreed services after the
term of delivery has expired, sets a reasonable grace period and the
reasonable grace period has also expired without result.
3.2. Deliveries that were reported to the merchant to be ready for
delivery within the grace period are an exception to this provision.
3.3 Item 3.1. does not apply if a grace period is required by law. If the
date of delivery is determined by a fixed calendar date or period, the
grace period to be set by the Buyer starts once that date or period has
passed. The legal right to compensatory damages in lieu of performance
shall not be affected.
4. If consumers are entitled to a right of cancellation pursuant to § 312d
para. 1 sentence 1 BGB, the Buyer shall bear the regular costs for
returning the item if the price of the item to be returned does not exceed
the amount of 40.00 euros or if the price of the item is higher, the
consumer has not yet provided full payment or a partial payment at the
time of the cancellation, unless the delivered item is not what was
ordered.
5. If the Buyer is a merchant, the Seller shall be deemed in default on the
basis of a warning notice only if it has been issued in writing. A deadline
for subsequent performance must be reasonable. A deadline must be
established in writing. In case of doubt, a reasonable period shall be a
deadline of at least 3 weeks. For goods that cannot be packaged for
shipping (large goods) delivery shall be made per forwarding agent to
the curbstone. The Buyer may arrange for additional transport services
with the freight operator; the Buyer must pay any supplemental costs
hereby incurred directly to the freight operator.
§ 5 Shipping and transfer of risk with respect to merchants
1. Shipping costs:
The shipping costs shall be borne by the Buyer and include the costs for
transport insurance taken out by the Seller.
2. All risk is transferred to the Buyer upon transfer to the forwarding
agent or freight operator, but no later than when the goods have left the
plant or warehouse.
3. The Seller is only obligated to take out transport insurance if the Buyer
expressly requests it. The Buyer shall bear the cost.
§ 6 Liability for defects and other liability towards merchants
1. If the Buyer is a merchant, immediately after delivery he shall inspect
the delivered goods for any defects or variances in quantity and report in
writing a completely or partially defective delivery immediately after
discovery; the deadline for reporting for recognizable defects is 7 work
days. Merchants shall report other defects as soon as they are
discovered. If a buyer-merchant fails to submit a notice of defects that is
prompt and meets the requirements in terms of the deadline and form,
the goods shall be deemed to have been accepted with respect to the
defect. Notices of defect shall be taken into consideration only if the
goods are still in the condition they were in when they were delivered;
necessary inspection measures are an exception to this provision.
2. All parts or services that contain defects within the warranty period
shall either be corrected by the Seller free of charge, redelivered or
provided once again.
3. Claims arising from defects expire after twelve months. The above
limitation does not apply to the liability of the Seller for injury to life, limb
or health, which is based on failure of the Seller to meet the duty of
ordinary care or intentional or negligent failure to meet the duty of
ordinary care by a legal representative or vicarious agent of the Seller,
and not for liability for other damage that is based on gross negligence
on the part of the Seller or on intentional or grossly negligent failure to
meet the duty of ordinary care by a legal representative or vicarious
agent of the Seller.
4. Statutory claims by the Buyer against the Seller under a right of
recourse obtain only to the extent that the Buyer has not reached
agreements with his customer that go beyond the statutory claims for
defects.
§ 7 Liability for defects and other liability towards merchants
1. If the Buyer is a merchant, immediately after delivery he shall inspect
the delivered goods for any defects or variances in quantity and report in
writing a completely or partially defective delivery immediately after
discovery; the deadline for reporting for recognizable defects is 7 work
days. Merchants shall report other defects as soon as they are
discovered. If a buyer-merchant fails to submit a notice of defects that is
prompt and meets the requirements in terms of the deadline and form,
the goods shall be deemed to have been accepted with respect to the
defect. Notices of defect shall be taken into consideration only if the
goods are still in the condition they were in when they were delivered;
necessary inspection measures are an exception to this provision.
2. All parts or services that contain defects within the warranty period
shall either be corrected by the Seller free of charge, redelivered or
provided once again.
3. Claims arising from defects expire after twelve months. The above
limitation does not apply to the liability of the Seller for injury to life, limb
or health, which is based on failure of the Seller to meet the duty of
ordinary care or intentional or negligent failure to meet the duty of
ordinary care by a legal representative or vicarious agent of the Seller,
and not for liability for other damage that is based on gross negligence
on the part of the Seller or on intentional or grossly negligent failure to
meet the duty of ordinary care by a legal representative or vicarious
agent of the Seller.
4. Statutory claims by the Buyer against the Seller under a right of
recourse obtain only to the extent that the Buyer has not reached
agreements with his customer that go beyond the statutory claims for
defects.
§ 8 Reservation of title
1. Until all claims that the Seller is entitled to under this agreement
against the Buyer (irrespective of whether consumer or merchant) in
commercial transactions (merchant) for any legal reason now or in the
future are settled, the Seller retains ownership of the delivered goods
(reserved goods).
2. The Buyer may not dispose of the reserved goods without the consent
of the Seller. If the Buyer resells the delivered goods in a commercial
transaction with the consent of the Seller, effectively immediately he
assigns to the Seller the claim against his customers thus arising with all
collateral agreements to secure the claims of the Seller up to the amount
of the value of the reserved goods. The Seller accepts the assignment.
3.
The Buyer is obligated, as long as ownership has not been transferred to
him, to treat the purchased item with care. In particular, he is obligated to
insure it adequately at replacement value against theft, fire and water
damage at his own expense (note: only permissible for the sale of high
value goods). If maintenance and inspection work are performed, the
Buyer shall perform the work on a timely basis at his own expense. As
long as ownership has not been transferred, the Buyer shall promptly
inform us in writing if the delivered item is distrained or subjected to other
interventions by third parties. Insofar as the third party is not in a position
to reimburse us for the court costs and out-of-court costs of a suit
pursuant to § 771 ZPO (German Code of Civil Procedure), the Buyer
shall be liable for the loss we have incurred.
4. In the event of conduct by the Buyer that is in breach of contract – in
particular in the event of default of payment - the Seller is entitled to
repossess the reserved goods at its expense. Repossession and
distraint of the reserved goods by the Seller – to the extent the
Consumer Credit Law does not apply – does not constitute withdrawal
from the contract.
§ 9 Withdrawal
If the Buyer was deceptive regarding his creditworthiness when the order
was placed, the Seller is entitled to withdraw from the contract without
setting a grace period. If such circumstances appear after the order was
filled, the Seller is obligated to continue performance only if an
appropriate advance payment has been made.
§ 10 Data storage
Pursuant to § 28 of the Federal Data Protection Act, the Seller calls
attention to the fact that the data necessary in connection with business
transactions are processed and stored via an IT system pursuant to § 33
of the Federal Data Protection Act.
§11 Applicable law
The law of the Federal Republic of Germany shall apply exclusively to all
legal relationships between Seller and Buyer.
§ 12 Place of performance and legal venue
The place of performance for all services under this contract in
commercial transactions is Rednitzhembach for both parties, and/or for
contract implementation via the Seller's Magdeburg branch.
Legal venue in commercial transactions for all disputes arising from legal
relationships between the Seller and the Buyer is Nürnberg. For
contracts with legal persons under public law or a public law entity with
special funds exclusive, legal venue for all disputes arising from the legal
relationship, including summary actions based on bills of exchange and
checks shall also be Nürnberg. In a contract with consumers, the legal
venue as well as the place of performance are based on the provisions
of the rules of the German Code of Civil Procedure and the German Civil
Code.
If the Buyer has no general legal venue in Germany, the place of
performance and legal venue is the place of the Seller's registered office.
§ 13 Final provisions
1. To the extent these General Terms of Business do not contain
contrary provisions, the statutory provisions shall apply.
2. If any provision in these General Terms of Business becomes invalid
or in individual cases, e.g. absent merchant status of the Buyer, is not
applicable, this shall not affect any of the remaining provisions.
