General Terms and Conditions with Customer Information
Table of Contents
Scope of Application
Conclusion of Contract
Prices and Payment Conditions
Delivery and Shipping Conditions
Force Majeure
Delay in Performance at the Customer's Request
Retention of Title
Liability for Defects / Warranty
Liability
Limitation Period
Retention, Assignment
Special Conditions for the Processing of Goods According to Specific Customer Specifications
Special Conditions for Assembly/Installation Services
Applicable Law, Place of Jurisdiction
1) Scope of Application
1.1 These General Terms and Conditions (hereinafter "GTC") of Brand GmbH (hereinafter "Seller") apply to all contracts for the delivery of goods concluded between an entrepreneur (hereinafter "Customer") and the Seller regarding the goods presented by the Seller in its online shop. The inclusion of the Customer's own terms and conditions is hereby rejected, unless otherwise agreed.
1.2 These GTC also apply exclusively if the Seller, in full knowledge of conflicting or deviating terms and conditions of the Customer, carries out delivery to the Customer without special reservation.
1.3 An entrepreneur within the meaning of these Terms and Conditions is a natural or legal person, or a partnership with legal capacity, who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity.
1.4 An entrepreneur within the meaning of these Terms and Conditions also includes authorities or other public law institutions if they act exclusively under private law when concluding a contract.
2) Conclusion of Contract
2.1 The product descriptions presented in the Seller's online shop do not constitute binding offers on the part of the Seller, but serve as a basis for the customer to submit a binding offer.
2.2 The customer can submit an offer via the online order form integrated into the Seller's online shop. After placing the selected goods and/or services in the virtual shopping cart and completing the electronic ordering process, the customer submits a legally binding contractual offer with regard to the goods and/or services contained in the shopping cart by clicking the button concluding the ordering process. Furthermore, the customer can also submit the offer to the Seller by fax, email, post, or online contact form.
2.3 The Seller may accept the Customer's offer within five days,
by sending the Customer a written order confirmation or an order confirmation in text form (fax or email), whereby receipt of the order confirmation by the Customer is decisive, or
by delivering the ordered goods to the Customer, whereby receipt of the goods by the Customer is decisive, or
by requesting payment from the Customer after placing the order, or
if payment by direct debit is offered and the Customer chooses this payment method, by collecting the total price from the Customer's bank account, whereby the time at which the Customer's account is debited is decisive.
If several of the aforementioned alternatives apply, the contract is concluded at the time one of the aforementioned alternatives occurs first. The period for accepting the offer begins on the day after the offer is sent by the Customer and ends on the expiry of the fifth day following the date on which the offer is sent. If the seller does not accept the customer's offer within the aforementioned period, this shall be deemed a rejection of the offer, with the consequence that the customer is no longer bound by their declaration of intent.
2.4 If a payment method offered by PayPal is selected, payment processing will be carried out via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: "PayPal"), subject to the PayPal Terms of Use, available at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full or - if the customer does not have a PayPal account - subject to the terms and conditions for payments without a PayPal account, available at https://www.paypal.com/de/webapps/mpp/ua/privacywax-full. If the customer pays using a payment method offered by PayPal, which can be selected during the online ordering process, the seller hereby declares acceptance of the customer's offer at the time the customer clicks the button that completes the ordering process.
2.5 When submitting an offer via the Seller's online order form, the contract text will be saved by the Seller after the contract has been concluded and sent to the Customer in text form (e.g., by email, fax, or letter) after the Customer has submitted their order. The Seller will not make the contract text available beyond this time. If the Customer has created a user account in the Seller's online shop before submitting their order, the order data will be archived on the Seller's website and can be accessed free of charge by the Customer via their password-protected user account by providing the corresponding login data.
2.6 Before submitting a binding order via the Seller's online order form, the Customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better detection of input errors can be the browser's zoom function, which enlarges the display on the screen. During the electronic ordering process, the customer can correct their entries using the usual keyboard and mouse functions until they click the button that completes the order process.
2.7 Only German is available for the conclusion of the contract.
2.8 Order processing and contact are generally carried out via email and automated order processing. The customer must ensure that the email address provided for order processing is correct so that emails sent by the seller can be received at this address. In particular, when using spam filters, the customer must ensure that all emails sent by the seller or third parties commissioned by the seller to process the order can be delivered.
2.9 If the parties have agreed on special terms and conditions, these do not generally apply to concurrent and future contractual relationships with the customer.
2.10 If the customer is financially unable to fulfill its obligations to the seller, the seller may terminate existing exchange contracts with the customer without notice by withdrawing from the contract. This also applies if the customer files for insolvency. Section 321 of the German Civil Code (BGB) and Section 112 of the German Insolvency Code (InsO) remain unaffected. The customer will notify the seller in writing in a timely manner of any impending insolvency.
3) Prices and Payment Terms
3.1 Unless otherwise stated in the seller's product description, the prices quoted are net prices, subject to statutory sales tax. Packaging and shipping costs, loading, insurance (especially transport insurance), customs duties, and taxes will be charged separately if applicable.
3.2 For deliveries to countries outside the European Union, additional costs may arise in individual cases for which the seller is not responsible and which must be borne by the customer. These include, for example, costs for money transfers by credit institutions (e.g., transfer fees, exchange rate fees) or import duties or taxes (e.g., customs duties). Such costs may also arise in relation to money transfers if the delivery is not made to a country outside the European Union, but the customer makes the payment from a country outside the European Union.
3.3 The Customer has various payment options available, which are specified in the Seller's online shop.
3.4 If advance payment by bank transfer has been agreed, payment is due immediately upon conclusion of the contract, unless the parties have agreed on a later due date.
3.5 A payment is deemed received as soon as the equivalent amount has been credited to one of the Seller's accounts. In the event of late payment, the Seller is entitled to default interest at a rate of 10 percentage points above the applicable base interest rate. The Seller's other statutory rights in the event of late payment by the Customer remain unaffected. If claims are overdue, incoming payments will first be credited against any costs and interest, and then against the oldest claim.
3.6 In the event of unforeseeable cost increases (e.g., currency fluctuations, unexpected price increases by suppliers, etc.), the Seller is entitled to pass on the price increase to the Customer. However, this only applies if delivery is agreed to take place later than four months after the conclusion of the contract.
4) Delivery and Shipping Conditions
4.1 Goods will be delivered by shipping to the delivery address provided by the customer, unless otherwise agreed. When processing the transaction, the delivery address provided during the seller's order processing is decisive.
4.2 The Seller is entitled to make partial deliveries, provided this is reasonable for the Customer. In the case of permissible partial deliveries, the Seller is also entitled to issue partial invoices.
4.3 The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-delivery. This only applies if the non-delivery is not the Seller's responsibility and the Seller has concluded a specific hedging transaction with the supplier with due diligence. The Seller will make all reasonable efforts to procure the goods. In the event of unavailability or only partial availability of the goods, the Customer will be informed immediately and the consideration will be refunded immediately.
4.4 The risk of accidental loss and accidental deterioration of the sold goods shall pass to the Customer as soon as the Seller has delivered the goods to the freight forwarder, carrier, or other person or institution designated to carry out the shipment. This also applies if the Seller bears the transport costs. Transport insurance is only provided upon special request and at the customer's expense. If the seller is responsible for installation and assembly, the risk shall pass upon completion of the installation and assembly work and handover to the customer.
4.5 If delivery is not possible for reasons for which the customer is responsible, e.g., because the goods do not fit through the customer's front door, front door, or staircase, or because the customer cannot be found at the delivery address provided by them despite the customer having been notified of the delivery time with reasonable notice, the customer shall bear the costs for the unsuccessful delivery and shall be obligated to pay a flat-rate compensation for delay. This shall amount to 1% for each full week of delay, up to a maximum of 8% of the value of the total delivery or the portion of the total delivery not accepted. The parties remain free to prove higher or lower damages.
4.6 In the event that the shipment of the goods to the customer is delayed for reasons for which the customer is responsible, the transfer of risk occurs upon notification of readiness for shipment to the customer. Any storage costs incurred after the transfer of risk are to be borne by the customer.
4.7 In the case of self-collection, the seller will first inform the customer by email that the goods ordered by the customer are ready for collection. After receiving this email, the customer can collect the goods after consultation with the seller. In this case, no shipping costs will be charged.
5) Force Majeure
In the event of force majeure events that affect the fulfillment of the contract, the seller is entitled to postpone delivery for the duration of the disruption and, in the event of longer-term delays, to withdraw from the contract in whole or in part, without any claims against the seller being derived from this. Force majeure is defined as all events unforeseeable by the Seller or those which – even if foreseeable – are beyond the Seller's control and whose impact on the fulfillment of the contract cannot be prevented by reasonable efforts on the part of the Seller. Any statutory claims of the Customer remain unaffected.
6) Delay in Performance at the Customer's Request
If shipment or delivery of the goods is delayed at the Customer's request for more than one month after notification of readiness for shipment, the Customer may be charged storage fees of 0.5% of the purchase price for each additional month or part thereof, up to a maximum of 5% of the purchase price. The contracting parties remain free to provide evidence of higher or lower damages.
7) Retention of Title
7.1 The Seller retains title to the delivered goods until the purchase price owed has been paid in full. Furthermore, the Seller retains title to the delivered goods until all its claims arising from the business relationship with the Customer have been fulfilled.
7.2 In the event of processing of the delivered goods, the Seller shall be deemed the manufacturer and shall acquire ownership of the newly created goods. If processing occurs together with other materials, the Seller shall acquire ownership in the ratio of the invoice value of its goods to that of the other materials. If, in the event of the combination or mixing of the Seller's goods with an item belonging to the Customer, the latter is to be regarded as the main item, co-ownership of the item shall pass to the Seller in the ratio of the invoice value of the Seller's goods to the invoice value, or in the absence of such, to the market value of the main item. In these cases, the Customer shall be deemed the bailee.
7.3 The customer may neither pledge nor assign as security items subject to retention of title or retention of title. The customer is only permitted to resell the goods as a reseller in the ordinary course of business, provided that the customer has effectively assigned to the seller the customer's claims against its customers in connection with the resale and that the customer transfers ownership to its customer subject to payment. By concluding the contract, the customer assigns its claims against its customers in connection with such sales to the seller as security, who simultaneously accepts this assignment.
7.4 The customer must immediately notify the seller of access to the goods owned or co-owned by the seller or to the assigned claims. The customer must immediately remit to the seller any amounts assigned to the seller or collected by the customer, to the extent that the seller's claim is due.
7.5 If the value of the Seller's security interests exceeds the amount of the secured claims by more than 10%, the Seller will release a corresponding portion of the security interests at the Customer's request.
8) Liability for Defects / Warranty
If the purchased item is defective, the statutory liability for defects applies. The following applies, however:
8.1 Claims for defects do not arise in the event of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, or due to special external influences not assumed under the contract. If improper modifications or repair work are carried out by the Customer or third parties, no claims for defects shall exist for these or the resulting consequences, unless the Customer can prove that the defect complained of was not caused by these modifications or repair work.
8.2 For new goods, the limitation period for claims for defects is one year from delivery of the goods. For used goods, rights and claims due to defects are excluded.
8.3 The limitations of liability and reductions of limitation periods stipulated above do not apply
to items that have been used for a building in accordance with their usual purpose and have caused its defectiveness,
to the customer's claims for damages and reimbursement of expenses,
in the event that the seller fraudulently concealed the defect, and
to the right of recourse under Section 445a of the German Civil Code (BGB).
8.4 In the event of subsequent performance, the seller has the right to choose between repair or replacement.
8.5 If a replacement is delivered within the scope of liability for defects, the limitation period does not commence anew.
8.6 If subsequent performance takes the form of a replacement, the customer is obliged to return the initially delivered goods to the seller within 30 days. The return package must contain the reason for the return, the customer's name, and the number assigned for the purchase of the defective goods, which allows the seller to identify the returned goods. As long as and to the extent that the return cannot be identified for reasons for which the customer is responsible, the seller is not obligated to accept returned goods or to refund the purchase price. The customer shall bear the costs of reshipping.
8.7 If the seller delivers a defect-free item for the purpose of subsequent performance, the seller may claim compensation for use from the customer in accordance with Section 346 (1) of the German Civil Code (BGB). Other statutory claims remain unaffected.
8.8 If the customer acts as a merchant within the meaning of Section 1 of the German Commercial Code (HGB), the commercial obligation to inspect and give notice of defects applies in accordance with Section 377 of the HGB. If the customer fails to comply with the notification obligations stipulated therein, the goods shall be deemed approved.
9) Liability
The Seller is liable to the Customer for all contractual, quasi-contractual, and statutory claims, including tortious claims, for damages and reimbursement of expenses as follows:
9.1 The Seller is liable without limitation for any legal reason:
in the event of intent or gross negligence,
in the event of intentional or negligent injury to life, body, or health,
based on a warranty promise, unless otherwise provided,
based on mandatory liability such as under the Product Liability Act.
9.2 If the Seller negligently breaches a material contractual obligation, liability is limited to the foreseeable damage typical for the contract, unless unlimited liability applies in accordance with the above paragraph. Material contractual obligations are obligations that the contract imposes on the Seller according to its content to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place, and on whose compliance the Customer may regularly rely.
9.3 Otherwise, the Seller's liability is excluded.
9.4 The above liability provisions also apply with regard to the Seller's liability for its vicarious agents and legal representatives.
10) Limitation Period
Claims of the Customer against the Seller shall expire – with the exception of the claims regulated under the section "Liability for Defects / Warranty" – within one year from the date of knowledge of the facts giving rise to the claim, but no later than five years after the service has been provided, unless unlimited liability applies in accordance with the above paragraph.
11) Retention, Assignment
11.1 The Customer's rights of retention and refusal of performance are excluded unless the Seller does not dispute the underlying counterclaims or these have been legally established.
11.2 The Customer may not assign claims arising from the contract concluded with the Customer, in particular the assignment of any claims for defects by the Customer.
12) Special Conditions for the Processing of Goods According to Specific Customer Specifications
12.1 The Customer indemnifies the Seller against any claims asserted by third parties in connection with a violation of their rights through the Seller's contractual use of the Customer's Content. The Customer shall also assume the reasonable costs of any necessary legal defense, including all court and attorney fees at the statutory rate. This shall not apply if the Customer is not responsible for the violation of rights. In the event of a claim by third parties, the Customer is obligated to promptly, truthfully, and completely provide the Seller with all information necessary to examine the claims and defend itself.
12.2 The Seller reserves the right to refuse processing orders if the content provided by the Customer violates legal or regulatory prohibitions or violates common decency. This applies in particular to the provision of content that is unconstitutional, racist, xenophobic, discriminatory, abusive, harmful to minors, and/or glorifies violence.
13) Special Conditions for Assembly/Installation Services
If, according to the terms of the contract, the Seller is obliged, in addition to delivering the goods, to also assemble or install the goods at the Customer's premises, as well as any corresponding preparatory measures (e.g., taking measurements), the following applies:
13.1 The Seller shall provide its services, at its discretion, either personally or through qualified personnel selected by it. The Seller may also use the services of third parties (subcontractors) who work on its behalf. Unless otherwise stated in the Seller's service description, the Customer has no right to select a specific person to perform the desired service.
13.2 The Customer must provide the Seller with all information required to provide the agreed service completely and truthfully, unless the procurement of such information falls within the Seller's scope of obligations under the terms of the contract.
13.3 The Seller will contact the Customer after conclusion of the contract to arrange a date for the agreed service. The customer shall ensure that the seller or the personnel commissioned by the seller have access to the customer's relevant facilities at the agreed time.
13.4 The risk of accidental loss and accidental deterioration of the sold goods shall only pass to the customer upon completion of the assembly work and handover to the customer.
14) Applicable Law, Place of Jurisdiction
14.1 All legal relationships between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the laws governing the international sale of movable goods.
14.2 If the customer acts as a merchant, a legal entity under public law, or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the seller's registered office. If the customer is located outside the territory of the Federal Republic of Germany, the seller's registered office shall be the exclusive place of jurisdiction for all disputes arising from this contract. In the above cases, however, the seller is entitled in any case to bring proceedings before the court at the customer's registered office.