Terms and Conditions of Sale, Delivery and Payment (SDP)
1. Terms and Conditions of Sale, Delivery and Payment (SDP)
1.1 The terms and conditions below apply to all proposals, sales, deliveries, partial and subsequent deliveries, and to payments as well. Any deviating or supplemental provisions or verbal ancillary agreements require written confirmation by us. These terms and conditions are deemed to have been accepted no later than upon receipt of the goods or services.
1.2 These terms and condition of sale, delivery and payment also apply to the same degree for the future, without requiring any explicit reference to them. General purchasing or ordering terms and conditions of the Buyer only apply if they are compatible with our SDP. Under no circumstances may our silence be interpreted as acceptance of such deviating purchasing or ordering terms and conditions.
1.3 We reserve the right to technical changes in design, material, shape and manufacture.
1.4 These terms and conditions of sale, delivery and payment apply only to entrepreneurs as defined under §§ 14, 310 BGB [Bürgerliches Gesetzbuch; German Civil Code], i.e. natural or legal persons who, with regard to the purchase of the goods, act in pursuit of their commercial or self-employed professional activity.
2. Conclusion of an Agreement, Scope of Delivery, Pricing
2.1. Our proposals are subject to change; prior sale reserved. Delivery contracts are only effective, including such concluded in the course of ongoing business transactions, once we have confirmed the Buyer's purchase order in writing or in text form (i.e. also by email or fax). The content of the contract, in particular the scope of and time of delivery, is exclusively defined by our order confirmation. In the case of immediate delivery or performance, our confirmation may be replaced by our invoice.
2.2 All specifications relating to our products, in particular in illustrations, drawings, analyses, weight, quality and dimensions defined in proposals, brochures and/or on our website, are approximate average values. They do not constitute a guaranteed attribute nor is any procurement risk assumed, unless we have expressly marked it as such in writing with "legally guaranteed" or "We assume the procurement risk". Moreover, any reference to standards and similar technical regulations does not constitute a specification of the attributes of our products, unless this is expressly marked by us with "product attribute".
2.3 We are only obligated to deliver from our own inventory (supply from goods on hand). Moreover, our assumption of a procurement risk or a procurement guarantee is not based solely on our obligation to deliver an item that is only specified in terms of its type.
2.4 The prices confirmed in the order acknowledgment apply. Prices are ex works, excluding packaging, plus VAT, net cash.
2.5 The specified resale prices are deemed recommended prices, and they include applicable VAT.
2.6 If more than four months have elapsed between the conclusion of the contract and delivery and if our production and/or procurement costs have increased during this period, even taking into account conflicting developments for individual cost elements, we have the right to a surcharge that matches the percentage increase in costs. The same applies to the benefit of the Buyer (price reduction) in the event that our production and/or procurement costs are reduced. In the event of a price increase, the Buyer has the right to rescind from the contract by submitting a written declaration within 14 days of being notified of the price increase.
2.7 Insofar as the delivery or service under consideration is free of VAT in Germany, the customer undertakes to provide the necessary documentation or to cooperate in the provision thereof. For intra-community deliveries in accordance with § 6a UStG [Umsatzsteuergesetz; German VAT Act] the customer must submit its VAT number, provide verification of its entrepreneurial status and cooperate in the accounting and documentary demonstration (§§ 17a - c UstDV).
3. Delivery, Shipping
3.1 Unless otherwise agreed in writing, the stated delivery dates are non-binding and correspond to the anticipated delivery options. Where delivery dates and deadlines are non-binding or estimated (approx., around, etc.), we undertake to comply with them to the best of our ability. Orders are delivered as close to the specified date as possible; we reserve the right to the delivery ability. If orders cannot be delivered in a closed lot, subsequent delivery will be made at the earliest possible time, without the Buyer being able to claim any damage caused by delay or compensation for damages. Paragraph 8.1 lit. a-f applies accordingly.
3.2 We calculate a handling flat rate fee of € 7.95 for any orders with a net order value of less than € 390.00.
3.3 Cartons and disposable pallets are not returnable. Any added costs for priority, express or air transport or for freight detours will be invoiced.
3.4 All shipments are dispatched at the expense and risk of the Buyer. The risk of accidental loss or accidental degradation is transferred to the customer at the latest upon handover of the delivery item to the forwarding agent, carrier, or other third party designated to effect the shipment. Unless otherwise agreed, we hold transport insurance to cover the transport risk. We charge the Buyer 1% of the value of the goods as a minimum premium, which we expressly point out to the Buyer in the context of our proposal. In the event of damage in transit, we are only liable up to the amount of the insurance coverage. Paragraph 8.1 lit. a-f applies accordingly. If the Buyer has rejected including the shipment in the transport insurance, the risk of damage in transit is borne by the Buyer.
3.5 If, for reasons beyond our control, we do not receive deliveries or services from our sub-suppliers for the provision of deliveries or services owed under this contract, despite proper and sufficient supply with respect to the agreed quantity and quality according to our delivery or service agreement with the Buyer, or if we do not receive them correctly or in time, or if a force majeure occurs for a not insignificant duration (i.e. with a duration of more than 14 calendar days), we will in this case be entitled to postpone the delivery for the duration of the impediment or otherwise to rescind from the contract entirely or in part given the portion not yet fulfilled. This is under the proviso that we have informed our customers in advance of such delay and have not assumed the procurement risk. A force majeure is deemed to include strikes, lockouts, official interventions, energy and raw material shortages, transport bottlenecks through no fault of our own, operational hindrances through no fault of our own, such as due to fire, water and machine damage, and any other hindrances which, viewed objectively, were not culpably caused by us.
4. Payments
4.1 Our invoices are payable with no deduction within 30 days of the date of delivery (= invoice date). All payments are to be made directly to us. For wire transfers, the date of payment is the credit date of our bank: Checks and bills of exchange are accepted for debit only.
4.2 If the payment is not made within the period stipulated in 4.1, we are entitled, subject to the assertion of a higher damages for default without a reminder, to charge interest at a rate of 9 percentage points above the applicable prime interest rate according to § 247 BGB plus a reminder fee in the amount of EUR 40.00 (§ 288 (5.1) BGB.
4.3 If legal proceedings and interest have been incurred as a result of the Buyer's default in payment, we are entitled to use any payments received first to pay the incurred costs and then the interest; contradictory payment notes of the Buyer will not be observed.
4.4 We are entitled to make any additional deliveries dependent on the settlement of invoiced amounts that have become due, even if concluded purchase contracts have not expired.
4.5 If, after the conclusion of the contract, we become aware of facts indicating a significant deterioration in the Buyer’s financial situation which, at our due discretion, are likely to jeopardize our claim to counter-performance, we may demand appropriate security within a reasonable period of time, or advance payment, or performance in return until the time of our performance. We are also entitled to revoke granted payment terms. If the Buyer does not comply with our legitimate demand or does not comply in due time, we may rescind from the contract or demand compensation instead of performance.
5. Reverse Processing
5.1 Should the contract be rescinded due to a justified right of rescission or due to an incorrect order, we will have the right, without prejudice to any other claims we may have against the Buyer, to claim 15% of the purchase price plus VAT for the use and utilization of the goods, as compensation for the loss of value and for internal handling costs.
5.2 Documented evidence of a lower or no loss of value or costs remains expressly reserved to the Buyer.
6. Retention of Title and Advance Assignments
6.1 The delivered goods shall remain our property (goods subject to retention of title) until all claims to which we are entitled from the previous, present and future business relationship with the Buyer have been satisfied.
In the event of a breach of duty by the Buyer, in particular in the event of a delay in payment, we are entitled to rescind from the contract and demand the return of the goods subject to retention of title.
6.2 A retention of title also applies if the purchase price has been paid for certain deliveries of goods specified by the Buyer.
6.3 The Buyer is entitled to resell such goods subject to retention of title in the ordinary course of business. However, the Buyer hereby assigns to us all claims in the amount of the final invoice amount owed, which would accrue from the resale to its customers or third parties, irrespective of whether the goods subject to retention of title have been resold without or after processing. The Buyer remains authorized to collect such payments owed even after the assignment. Our authority to collect the payment owed itself remains unaffected by this. However, we undertake not to collect the payment owed as long as the Buyer duly meets its payment obligations. If the latter proviso is not met, we may demand that the Buyer informs us of the assigned claims and their debtors, provides any information required for collection, hands over the relevant documents and informs the debtors (third parties) of such assignment.
6.4 The payments owed for goods subject to retention of title arising from the resale will be transferred to us as a precaution, without requiring a special separate agreement. In the event of a conflict between our claim to the goods subject to retention of title and the rights of third parties, the assignment will be deemed to have been made proportionately based on our share of co-ownership.
If the value of the securities in our favor exceeds our claims by a total of more than 20%, the securities in excess of our claims will be released at the Buyer's request.
6.5 In the event of seizure or similar attachment by a third party to our goods or to the outstanding debts assigned to us, the Buyer undertakes to inform such third party of our rights and to notify us immediately with a view to intervening in the matter.
6.6 Any processing or processing of the goods subject to retention of title will be completed on our behalf, but without obligating us. If the goods subject to retention of title are mixed, processed or otherwise inseparably combined with other items not belonging to us, we will acquire co-ownership of the new item in in proportion to the invoice value of our goods to the invoice values of the other processed or combined items. If our goods are combined with other movable objects to form a single item, which is to be regarded as the main item, the Buyer hereby assigns to us co-ownership thereof in the same proportion. The Buyer will keep the property or co-ownership free of charge for us. The resulting co-ownership rights are deemed to be goods subject to retention of title. At our request, the Buyer agrees to provide us at any time with the information required to pursue our ownership or co-ownership rights.
7. Complaints, Warranties, Damages
7.1 We can only consider complaints about defects and quantity if they have been submitted in writing immediately after discovery, but no later than 14 days after receipt of the goods.
7.2 Hidden defects, which are not immediately recognizable even with the most careful examination, must be reported in writing immediately after detection.
7.3 The gross weight of incomplete shipments must be checked and kept available, including packaging, until clarification.
7.4 Defects that are not reported in time release us from any warranty obligation. Similarly, we are not liable for the consequences of improper treatment of alfi vacuum carafes, metal and household goods by the Buyer or third parties.
7.5 In the case of justified complaints of defects made in due form and in due time, it will be at our discretion to honor our warranty by way of either repairs free of charge or a subsequent delivery, provided that the cause of the material defect was already present at the time of the transfer of risk (section 3.4).
7.6 Claims for material defects will become statute-barred within 12 months. The period begins with the transfer of risk (section 3.4). The above deadlines do not apply if longer deadlines are stipulated by law, e.g. § 479 (1) BGB (right of recourse of the entrepreneur). Paragraph 8.1 lit. a-f applies accordingly.
7.7 In the event of damage in transit notifications relating to shipments insured by us, a separate
declaration must be submitted for the insurance provider on request.
7.8 First of all, we must always be granted the opportunity by subsequent performance in accordance with section 7.5 within a reasonable period of time. The Buyer must provide us with the object or sample of the object that the complaint pertains to.
7.9 Claims for defects do not apply in the event of only insignificant deviations from the agreed condition,
natural wear and tear or damage arising after the transfer of risk due to unsuitable or improper use, faulty or negligent treatment, excessive stress or unsuitable equipment. If improper modifications or repair work are performed by the Buyer or by a third party, no claims for defects apply for such modifications or repair work or for the consequences resulting therefrom.
7.10 In all other respects, Clause 8 applies to claims for damages.
8. Claims for Damages
8.1 In principle, we are only liable for intent and gross negligence on our part and on the part of our legal representatives and vicarious agents. Our liability and that of our legal representatives and vicarious agents for slight negligence is therefore excluded, insofar as it does not relate to
(a) A violation of material contractual obligations, i.e. the fulfillment of which shapes the contract and on which the Buyer may rely.
(b) A violation of obligations as stipulated under § 241 (2) BGB, if the Buyer can no longer be expected to perform our services,
(c) An injury to life, limb and health,
(d) An assumption of a guarantee for the quality of a service, for the existence of a performance success or for a procurement risk,
(e) Claims under the Product Liability Act, or
(f) Any other cases of mandatory legal liability.
8.2 With the exception of cases as defined under Clause 8.1 (b-f) above, we are only liable for the damage typical of the contract and foreseeable.
8.3 Any additional liability for damages than provided for in the preceding paragraphs is excluded – regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpability at the time of conclusion of the contract, due to other breaches of duty or tort claims for compensation for material damage in accordance with § 823 BGB
8.4 Claims of the Buyer for damages arising from this contractual relationship may only be asserted within a preclusion period of one year from the start of the statutory limitation period; this does not apply if we are culpable of malice, intent or gross negligence or in the case of a claim based on a tortious act. The limitation period in the event of a delivery recourse in accordance with §§ 478, 479 BGB remains unaffected.
8.5 The above provisions do not imply any reversal of the burden of proof.
9. Miscellaneous
9.1 German law applies to any legal relationships between us and the Buyer in conjunction with this contract, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
9.2 If the Buyer is a registered trader, the exclusive legal venue for all disputes is the court responsible for the registered office of our company. However, we are also entitled to sue the Buyer at his general legal venue.
9.3 These provisions replace all previous provisions with immediate effect and shall remain in force until they are replaced by provisions to the contrary.
Issue date: 01/2022