Terms and Conditions
(This is a translation of the German version. In cases of doubt, the German version shall prevail.)
§ 1 Scope
(1) These General Terms and Conditions shall apply exclusively to business relationships between us and entrepreneurs, legal persons under public law or special funds under public law pursuant to § 310 (1) of the Bürgerliches Gesetzbuch (German Civil Code – BGB). We shall recognize terms and conditions of the ordering party that conflict with, or diverge from, these General Terms and Conditions only if it gives its express written consent to their applicability
(2) These General Terms and Conditions shall also apply to all future business transactions with the ordering party, providing they are legal transactions of a related type.
§ 2 Offer and Contract Formation
(1) We and the ordering party shall only enter into a contract if the ordering party is an entrepreneur, a legal person under public law or a special fund under public law.
(2) By ordering goods, the ordering party shall make a binding declaration that it intends to purchase the ordered goods. We shall be entitled to accept the offer contained in the order within a period of 14 days of receipt thereof. The contract shall be formed only on execution of the order or on our written acknowledgement, separate from a usually automatically sent order confirmation.
(3) Offers made by us shall be subject to change and non-binding. If the offer contains details such as drawings, dimensions, or weights, these are deemed approximate unless they are explicitly designated as binding. The description in the written acknowledgement of the order is solely determinant for the delivered goods.
(4) The completion of the contract by us with respect to deliveries that are subject to export regulations shall be conditional in that we have been given the respective permissions.
§ 3 Prices, Payment and Default of Payment
(1) Our prices shall be applicable in euro ex works, excluding transport costs and other ancillary costs, such as insurance and customs clearance costs or expenses, and shall be subject to VAT at the prevailing rate.
(2) Payment shall be initiated immediately after the ordering party confirmed the order, using the PayPal payment system available in the online shop or, if bank transfer has been chosen by the ordering party, via bank transfer within 14 days after the ordering party has submitted an order and we have acknowledged the order.
(3) All taxes, fees and/or charges connected with contractual delivery outside Germany shall be borne by the ordering party. Should the authorities of the ordering party’s country levy any taxes, fees and/or other charges on us in connection with such delivery, the ordering party shall reimburse him for the amounts paid.
§ 4 Delivery Periods, Partial Deliveries, Default of Delivery and Acceptance
(1) Unless otherwise expressly agreed, delivery periods shall be deemed to be merely indicative. The delivery period shall commence on the day on which the written acknowledgement of the order (see § 2 (2)) is dispatched, or in case the ordering party chose bank transfer as payment method, the day on which we received the full payment. The given delivery period shall be treated as complied to if the goods have left our premises or we have acknowledged the readyness for dispatch.
(2) The delivery period shall be extended commensurately in the event of occurrence of unforeseen obstacles which we could not avert including official actions, strikes and lock-outs, or failure to deliver or late delivery on the part of our suppliers. If such events last longer than 3 months, we or the ordering party are both entitled to cancel the contract. This does not influence already potentially existing legal rights of withdrawal. We cannot be held liable for events that we could not avert and do not make up for resulting damages or expenditures.
(3) Should the ordering party suffer damage or loss as a result of a delay in delivery caused by us, in particular in line with a fixed delivery period agreed by us, the ordering party shall be entitled to claim a lump-sum compensation. Such compensation, in case of slight negligence, shall amount to 0.5% for each full week of delay, but limited to a maximum of 5% of the value of that part of the delivery which, due to the delay, cannot be used on time or in accordance with the contract. Further recourse because of delay in delivery caused by us shall be excluded.
(4) If the ordering party defaults on acceptance or if it is in culpable breach of other obligations to cooperate, we shall be entitled to demand compensation for any loss incurred in this respect including compensation for any necessary additional expenses. We shall reserve the right to assert further claims. If the aforementioned prerequisites have been met, the risk of accidental destruction or accidental deterioration of the object of the sale shall pass to the ordering party at the moment in time at which the latter defaulted on acceptance or was in debtor’s delay.
§ 5 Transfer of Risk
(1) If, at the request of the Ordering Party, the goods are sent to it, the risk of accidental destruction and accidental deterioration of the goods shall pass to the ordering party latest when the goods leave our plant/warehouse. The aforementioned provision shall apply irrespective of whether the goods are dispatched from the place of fulfilment. If the delivery is delayed for reasons not attributable to us, the risk shall pass to the ordering party from the moment of acknowledgement of readyness for dispatch.
(2) Our delivery of goods shall be accepted by the ordering party even if they have inessential defects, notwithstanding the rights described in § 6.
(3) Partial shipment shall be accepted by the ordering party.
§ 6 Notification of Defects, Warranty
(1) Warranty claims of the ordering party shall be contingent upon its having complied properly with its examination and notification obligations in accordance with Section 377 of the Handelsgesetzbuch (German Commercial Code – HGB). Warranty claims shall become time-barred in 12 months from delivery of the goods supplied by us to the ordering party. The aforementioned limitation period shall not apply to recourse claims under sections 478, 479 Bürgerliches Gesetzbuch (German Civil Code – BGB), in the case of fraudulently concealed defects as well as to claims for damages under § 7 (5) which shall be subject to statutory limitation periods.
(2) If, despite all the care exercised, the supplied goods have a defect which already existed at the time the risk passed and the notice of defect arrived in due time, we shall initially have the right, at our option, to remedy the defect or to supply an object free of defects. The ordering party shall afford us an opportunity of subsequent performance within a reasonable period. Parts replaced in the course of subsequent improvement or subsequent delivery shall pass back into our property and shall be returned by the ordering party at our request and expense. Rights to recourse shall remain unaffected by the aforementioned provision. If the subsequent performance fails, the ordering party may rescind the delivery contract or reduce payment.
(3) If an alleged defect is proved to be a defect in accordance with the intent of the warranty hereunder, then, of the direct costs resulting from the repair/replacement part(s) delivery, the we shall bear the costs incurred for the remedial item(s) involved, including shipment thereof. We undertake to carry out disassembly and re-installation, insofar as this requires special skills in the case of the particular item involved. Otherwise, the delivery to the ordering party of the part(s) properly repaired or part(s) in replacement of the defective part(s) involved shall be considered as fulfilment by the us of our obligations in respect of the defect concerned. The ordering party shall bear other costs not mentioned above.
(4) The Ordering Party shall have no warranty claims in the event of merely negligible divergence from the agreed characteristics, in the event of merely negligible impairment of utility, in the event of natural wear and tear, in the event of damage caused by incorrect or negligent handling, excessive stress or strain, unsuitable operating equipment, or due to special external influences which were not provided for under the delivery contract. If improper repairs or changes are carried out by the ordering party or third parties, no warranty claims shall likewise be asserted for them and any consequences resulting therefrom, in accordance with the restrictions set forth in § 7 (5).
(5) In the event of onward sales, by the ordering party, of our goods to a consumer as a customer or to other companies as customers, who, in turn, sell the goods to a consumer, we shall only accept recourse actions if the ordering party has not made any agreements with the consumer that go beyond the legally binding warranty claims.
§ 7 Right of Withdrawal or Reduction in Price, Liabilities
(1) The below stated right of withdrawal is only applicable for consumers according to § 13 Bürgerliches Gesetzbuch (German Civil Code – BGB). If such a withdrawal is applicable, the ordering party has to bear the ordinary costs of return if the goods received are in conformity with those ordered, and if the price of the goods returned does not exceed an amount of 40 Euros, or if in the case of a higher price of the goods the ordering party has not yet performed the service in return or any partial payment as agreed upon by contract at the point in time of revocation. In any other case the return of the goods is exempt from charges.
(2) If a fixed date of delivery has not been adhered to as described in § 4, the ordering party is only allowed to rescind the contract if it has set an appropriate respite which elapsed without success.
(3) If, according to § 6 we are to remedy a defect or to replace a defective object and we let elapse without success an appropriate period of notice provided to us, the purchaser may withdraw from the contract. The right to withdrawal also extends to other cases of failure of repair or replacement on our side.
(4) We shall be entitled to rescind the contract without replacement if the purchaser does not meet essential obligations due to us or a third party without giving justifying reasons, if the purchaser makes incorrect statements on his credit standing, if through no fault of our own we ourselves are not supplied or not supplied in time or if for other reasons the fulfilment of our duties of performance is no longer possible to us with the help of means which are reasonable considering our own interests and the justified interests of the purchaser identifiable at the time of signing the contract and considering, in particular, the agreed counter-performance.
(5) Other claims for compensation of any kind of damages, including damages not to the goods themselves, are valid only in case of
- intent and gross negligence,
- damages resulting from the violation of life, body or health,
- for damages resulting from the violation of essential contractual obligations (obligations the fulfilment of which allows the proper execution of the agreement), limited to the replacement of the foreseeable and typical damage,
- the mandatory liability in accordance with the German product liability law (Produkthaftungsgesetz),
- missing properties that have been explicitly assured if the assurance had had the deliberate goal of avoiding damages not to the goods themselves,
- our malicious omission of disclosing a defect or our provisioning of a warranty for the absence of a defect.
Otherwise, all other claims, in particular those of cancellation of the contract, reduction of price, or compensation are excluded.
(6) In case our liabilities are excluded or restricted, this also applies with respect to personal liabilities of our employees, staff, representatives, or vicarious agents.
§ 8 Settlement of Disputes; Governing Law
(1) The contract shall be governed exclusively by the German law; however, an application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
(2) If the customer is an entrepreneur, a legal person under public law or a special fund under public law, the following shall apply: jurisdiction over any legal disputes shall lie with the competent court at our business domicile. However, we may also bring legal action against the customer before a court in the customer's general jurisdiction.
(3) The place of fulfilment shall be our business location unless there is a different agreement in our acknowledgement of the order.
§ 9 Miscellaneous
(1) All agreements made between the parties for the purpose of execution of this contract shall require the written form.
(2) In the case where one of the above stipulations or regulations should be or become invalid or incapable of being put into practice, the remaining regulations shall remain unaffected by this. The parties hereby agree, with immediate effect, to replace that stipulation or regulation which shall prove invalid or incapable of being put into practice with one which, within the limits of what is legally permissible, shall approach as closely as possible to achieving the same commercial aim as that pursued by the regulation become invalid. The same shall apply also in the case where the present regulations shall prove to contain a lacuna.
Provided that a customer is consumer according to § 13 of the Bürgerliches Gesetzbuch (German Civil Code – BGB) he shall have a right of withdrawal in accordance with the relevant statutory provisions and the sections below. No such right of withdrawal exists if the customer is an entrepreneur, a legal person under public law or a special fund under public law pursuant to § 310 (1) of the Bürgerliches Gesetzbuch (German Civil Code – BGB) that in concluding a legal transaction with the Supplier is acting in the execution of its commercial or independent business activity.
Right of Withdrawal
You have the right to cancel your declaration of contract without stating a reason within fourteen (14) days in written form (e.g. letter, e-mail) or – if you received the goods before expiry of the term – by returning the goods. The stated period of time starts on receipt of this information in written form, however not before receipt of the goods by the consignee (for recurring consignments of similar goods not before receipt of the first part-delivery), and also not before performance of our obligation of information according to § 246 (2) in association with (1) 1. and 2. of the Einführungsgestzbuch zum Bürgerlichen Gesetzbuch (Introductory Law to the Civil Code - EGBGB) as well as our obligations according to § 312g (1) 1. of the Bürgerliches Gesetzbuch (German Civil Code – BGB) in conjunction with § 246 (3) EGBGB. To comply with the stated period of time it is sufficient to dispatch the cancellation or the goods in time.
The cancellation has to be sent to:
Marko Luther und Paul Holleis GbR
85586 Poing, Germany
The right of withdrawal does not apply to contracts for the delivery of goods which are either custom-made according to your specifications or that are clearly custom-tailored to meet your personal demands or which are, due to their properties, not fit for reshipment.
Consequences of Cancellation
In the event of an effective cancellation the mutually provided goods and services shall be returned and, if applicable, any benefits enjoyed (e.g. interest) surrendered. In case you cannot return or surrender the received goods and services as well as benefits enjoyed (e.g. benefits from usage) in total or in part or only in deteriorated condition, you have to, if applicable, provide compensation insofar. For the deterioration of the goods or for benefits enjoyed this only applies insofar as the use or the deterioration of the goods is due to a handling of the goods which exceeds the testing of the properties and the functionality. “Testing of the properties and functionality” means examining and trying out the goods as it is possible and usual to do for instance in a retail shop. Goods that can be dispatched as parcels have to be returned at our risk. You have to bear the ordinary costs of return if the goods received are in conformity with those ordered, and if the price of the goods returned does not exceed an amount of 40 Euros, or if in the case of a higher price of the goods you have not yet performed the service in return or any partial payment as agreed upon by contract at the point in time of revocation. In any other case the return of the goods is exempt from charges. Goods that cannot be returned as parcels will be collected from your address. Obligations for refunding of payments must be fulfilled within 30 days. The stated period of time starts for you with the dispatch of your declaration of cancellation or of the good, for us with their receipt.
Agreement on the costs for the return of goods
Should you choose to exercise your right of withdrawal, you have to bear the ordinary costs of return if the goods received are in conformity with those ordered, and if the price of the goods returned does not exceed an amount of 40 Euros, or if in the case of a higher price of the goods you have not yet performed the service in return or any partial payment as agreed upon by contract at the point in time of revocation. In any other case the return of the goods is exempt from charges.
This right of revocation only applies to consumers.
End of Cancellation Policy