General Terms of Sale
Our product range in our online shop is targeted exclusively at entrepreneurs, i.e. natural persons or legal entities or private companies vested with legal capacity (= a private company equipped with the capacity to acquire rights and enter obligations), who act in exercise of their commercial or independent professional activity on conclusion of the legal transaction, and it is targeted at legal entities of public law or special funds under public law.
§ 1 Scope of application
- The present General Terms of Sale (GTS) apply to all business relations of Chemos GmbH & Co. KG (“Seller”) and our customers (“Buyers”) based on orders via our online shop www.chemos.de (hereinafter referred to as the “Online Shop”). The GTS shall only apply if the Buyer is an entrepreneur (Sec. 14 BGB [German Civil Code]), a legal entity of public law or a special fund under public law.
- The GTS apply in particular to contracts for the sale and/or the delivery of moving objects (“Products”), regardless of whether we produce the Products ourselves or purchase them from suppliers (Sec. 433, 651 BGB). Unless agreed otherwise, the GTS apply in the version valid at the time of the Buyer’s order or in any case, in the version provided to the customer in text form as the master agreement, whilst also to similar future contracts without requiring that we point them out again in each individual case.
- Our GTS shall apply exclusively. Deviating, opposing or amending General Terms and Conditions of the Buyer will only become part of the contract if and insofar as we have expressly agreed to their applicability. This requirement for agreement applies in any case, for example also when we perform the delivery to the Buyer without reservation in awareness of its General Terms and Conditions.
- Any particular agreements concluded in the individual case with the Buyer (including side agreements, supplements and changes) take precedence over these GTS in any case. With regard to the content of such agreements, subject to evidence proving the contrary, a written contract or our written confirmation thereof shall be decisive.
- Legally binding declarations and notifications by the Buyer relating to the contract (e.g. setting of deadlines, claims of defects, withdrawal or reduction) shall be submitted in writing, i.e. in the written or in text form (e.g. by letter, email, fax). Legal requirements of form and further verifications, in particular in cases of doubt as to the legitimation of the party submitting the declaration, shall remain unaffected thereof.
- References to the applicability of legal regulation merely have a clarifying meaning. Therefore, even without such a clarification, the legal regulations shall apply, to the extent as they are not directly changed or expressly precluded in these GTS.
§ 2 Conclusion of the contract
- Our offers in the Online Shop are subject to change and non-binding. This also applies if we have already provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, computations, calculations, references to DIN standards), other product descriptions or documents – also in electronic format – to which we reserve property and copyrights.
- By placing an order in the Online Shop, the Buyer makes a binding offer to purchase the relevant product. We can accept the offer until the end of the third workday following the day on which the offer was submitted.
- Directly upon receipt of the offer, we will send the Buyer a confirmation of the receipt of the offer, which however will not constitute an acceptance of the offer. The offer shall be deemed accepted by us if and as soon as we declare the acceptance to the Buyer (by email) or ship out the Products. The purchase agreement with the customer will become effective only upon our acceptance.
§ 3 Delivery period and delay of delivery
- The delivery periods specified by us shall always only apply as approximate values and they may therefore be exceeded by up to 10 days. The delivery periods are calculated as of the date of our order confirmation, provided that the purchase price has been paid beforehand (except when purchases are made on account). If no or no differing delivery period is specified for the relevant Product at our Online Shop, it shall be the period specified in the offer.
- If the Product specified by the customer in his order is temporarily unavailable, we shall inform the customer thereof without delay in the order confirmation. If the Product is permanently undeliverable, the Seller will not declare its acceptance of the order. No contract will be established in that case.
- We are entitled to make partial deliveries of Products, which are included in one order and which can be used separately, whereas the additional shipment costs incurred for this reason shall be borne by us.
- The following supply restrictions apply: The Buyer will only supply customers with place of habitual abode (invoice address) in one of the following countries who can specify a delivery address in the same country: Europe
- If we cannot meet delivery periods that have become binding, for reasons outside of our responsibility (non-availability of the service), we shall immediately inform the Buyer of this and of the expected new delivery period at the same time. If the service is not available even within the new delivery period, we will be entitled to withdraw partly or fully from the contract; in that case, we will directly return any counter-service already performed by the Buyer. A case of non-availability of service in this sense is deemed in particular any belated delivery to us by our supplier if we have exercised a congruent covering transaction, and if neither we nor our supplier is at fault or if we are not obligated for procurement in the particular case.
§ 4 Delivery, transfer of risk, delay of acceptance
- The delivery will be made ex-storage (Regenstauf), which shall also be the place of fulfilment for the delivery and any subsequent fulfilment shall be. If the Products are shipped to another place of destination, we shall merely owe the timely, correct handover of the Products to the respective transport company (sale by delivery to a place other than the place of performance). Unless agreed otherwise, we shall be entitled to determine the type of shipment on our own (in particular the transport companies, method of shipment, packaging).
- The risk of accidental loss and accidental deterioration of the Products will transfer to the Buyer at the latest upon handover. In a sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the Products as well as the risk of delays shall transfer already upon the shipment of the Products to the carrier, freight forwarder or other person or institution designated for implementing the shipment. The transfer shall have the same legal effect if the Buyer is in delay with the acceptance of the shipment.
- If the Buyer is in delay with the acceptance of the shipment, if it fails to cooperate or if our delivery is delayed for other reasons within the Buyer's responsibility, we will be entitled to demand compensation for the damage resulting thereof including additional costs (e.g. storage costs).
§ 5 Prices and terms of payment
- Unless agreed otherwise in the individual case, our current prices respectively valid at the time of the close of contract apply and specifically ex-storage (Regenstauf) in addition to the legal value-added tax.
- In the sale by shipment (§ 4 para. 1), the Buyer bears the transport costs ex storage and the costs of a transport insurance possibly requested by the Buyer. Unless we separately invoice the transport costs actually incurred in the individual case, a flat fee for transport costs (excluding the transport insurance) as described in the Online Shop shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
- Unless expressly agreed otherwise, we shall deliver solely against advance payment (in the manner described in the Online Shop or on the order from) or as cash on delivery parcel or against invoice respectively. On request by the customer, which shall be specified on the order form, we will also deliver the Products against payment at our business site (place, address). If delivery against invoice is agreed, our invoices shall become due for payment directly upon shipment of the Products and receipt of the invoice by the customer.
Upon the expiration of the aforementioned payment period, the Buyer will be in default of payment. The purchase price shall accrue interest during the period of default at the respectively valid legal interest rate. We reserve claims to additional default damages. Our claim for a commercial maturity interest rate in relation to merchants (Sec. 353 HGB [German Commercial Code]) remains unaffected.
- The customer shall not be entitled to rights of offsetting or withholding, insofar as the counter claim is not undisputed or not found valid by final and absolute judgement.
- If it becomes anticipatable (e.g. by application for opening an insolvency proceeding) after the conclusion of the contract that our claim to the purchase price is at risk because of a lack of the Buyer's capacity to pay, we will be entitled pursuant to the legal regulations to the right to refuse performance and – as the case may be, after setting a deadline – to withdraw from the contract (Sec. 321 BGB). For contracts on the production of non-resalable objects (individual productions), we may declare withdrawal immediately; the legal regulations on the dispensability of setting a deadline shall remain unaffected.
§ 6 Reservation of title
- Until the complete payment of all our current and future claims from the purchase contract and an ongoing business relationship (secured claims) we reserve the title to the sold Products.
- The Products subject to the reservation of title may neither be pledged nor transferred by way of security to third parties before the complete payment of the collateralised claims. The Buyer shall inform us in writing without delay when an application for the opening of insolvency proceedings is filed or if third parties have access (e.g. by way of attachments) to the Products in our property.
- In case the Buyer acts in breach of contract, specifically in the case of a failure to pay the due purchase price, we shall be entitled to withdraw from the contract according to the legal regulations and/or demand the surrender of the Products on grounds of the reservation of title. The demand for surrender shall not include the declaration of withdrawal at the same time; instead, we shall be entitled to demand merely the surrender of the Products and reserve withdrawal. If the Buyer does not pay the due purchase price, we may claim these rights only if we have previously set an appropriate deadline to the Buyer without success for the payment or if such setting of a deadline is not required according to the legal regulations.
- Until revocation according to the provisions below in (c), the Buyer shall be authorised to resell the Products that are subject to the reservation of title in the ordinary course of business and/or to process them. In this case, the following provisions shall apply in supplementation.
(a) The reservation of title extends to the Products created by processing, mixing or combination of our Products in their full value whereas we will be deemed the manufacturer. If the property rights of third parties are preserved in the processing, mixing or combing with the products of third parties, we will acquire co-ownership in proportion of the invoice amounts of the processed, mixed or combined goods. Furthermore, the same applies to the created product as well as to the Products having been delivered subject to the reservation of title.
(b) The Buyer shall assign claims against third parties arising from the resale of the Products or the resulting product to us at the present time already in their total amount and respectively the amount of our potential co-ownership therein in accordance with the foregoing paragraph. We hereby accept the assignment. The Buyer's duties specified in para. 2 shall also apply in respect of the assigned claims.
(c) The Buyer will remain authorised alongside with us for the collection of the claim. We undertake not to collect the claim for as long, as the Buyer fulfils its payment obligations to us and for as long, as its capacity to pay is not impaired and we do not claim the reservation of title by exercise of a right according to para. 3. However, if this is the case, we may demand that the Buyer discloses the assigned claims and their debtor to us, that it provides all information required for collection, surrenders the related documents and informs the debtors (third parties) of the assignment. Furthermore, we will be entitled in that case to revoke the Buyer’s authorisation for a further sale and processing of the Products that are subject to the reservation of title.
(d) If the recoverable value from the collateral exceeds our claims by more than 10 %, we will release collateral at our choice upon request by the Buyer.
§ 7 Buyer's claims of defects
- Regarding the rights of the Buyer for property and legal defects (including wrong or short delivery as well as inappropriate assembly or deficient assembly instructions), the legal regulations apply, unless determined otherwise in the following.
- The basis of our liability for defects is foremost the agreement concluded on the characteristics of the Products. All product descriptions that are the subject of the individual contract or that have been published by us (in particular in catalogues or on our homepage) shall apply as agreements on the properties of the Products.
- If no properties have been agreed, it shall be assessed whether a defect is present or not in accordance with the legal regulations (Sec. 434 (1), sent. 2 and 3 BGB). We do not accept any liability however for public statements by the manufacturer or other third parties (e.g. advertising messages).
- The Buyer's claims of defects require that it has fulfilled its legal obligations for investigation and notifying of complaints (Sec. 377, 381 HGB). If a defect is discovered in the delivery, the inspection or at any later point in time, we shall be notified thereof in writing without delay. Obvious defects shall be reported in writing in all cases within 5 working days as of the delivery and any defects that were not detectable in the inspection shall be reported within the same period as of their discovery. If the Buyer fails to conduct a proper inspection and/or claim defects, our liability for the defect not reported or not reported on time or reported not correctly shall be excluded in accordance with the legal regulations.
- If the delivered object is defective, we shall first have the choice of whether we will perform subsequent fulfilment by repair of the defect (reworking) or fulfil performance by delivery of a good free from defects (replacement delivery). Our right to refuse subsequent fulfilment under statutory conditions remains unaffected.
- We shall be entitled to make the owed subsequent fulfilment dependent on the Buyer paying the due purchase price. The Buyer however is entitled to withhold an appropriate part of the purchase price that is proportionate to the defect.
- The Buyer shall provide us the time and opportunity required for the owed subsequent fulfilment and in particular hand over the complained Products for the purposes of inspection. In the event of a replacement delivery, the Buyer shall return the defective object to us according to the legal regulations. The subsequent fulfilment includes neither the deinstallation of the defective object nor the reinstallation if we were not obligated originally for the installation.
- The expenses necessary for the purposes of inspection and subsequent fulfilment, especially the costs of transport, travel, work and material (not: deinstallation and installation costs) will be assumed by us if in fact a defect is present. Otherwise, we can demand compensation from the Buyer for the costs having arisen unjustified claims of the repair of defects (in particular costs for testing and transport), unless the absent deficiency was not recognisable to the Buyer.
- If the subsequent fulfilment has failed or if an appropriate period to be set by the Buyer for the subsequent fulfilment has expired idly if such is dispensable according to the legal regulations, the Buyer may withdraw from the purchase contract or reduce the purchase price. In contrast, no right to withdrawal is established for insignificant damages.
- The claims of the Buyer for damage compensation or refund of useless expenses shall be established also in the case of defects, exclusively in accordance with § 8 and be precluded for the rest.
§ 8 Other liability
- Unless stated otherwise in these GTS including the following provisions, we shall be liable for a breach of contractual and non-contractual duties in accordance with the legal regulations.
- We shall be liable for damage compensation, regardless of the legal reason, solely in the event of intent and gross negligence within the scope of tortious liability.
In cases of simple negligence, we shall be liable according to the legal regulations (e.g. for diligence in internal matters), subject to a milder liability standard, exclusively for
a) damages from the injury to life, body or health;
b) damages arising from a not insignificant breach of an essential contractual duty, i.e. an obligation whose fulfilment makes the proper implementation of the contract possible from the outset and the fulfilment of which the contract partner may and should ordinarily rely upon (so-called cardinal duty); whilst in such a case, however, our liability will be limited to the compensation of the predictable damage typically occurring.
- The liability limitations resulting from para. 2 shall also apply to breaches of duty committed by or in favour of persons whose fault is outside of our responsibility pursuant to legal regulations. The liability limitations pursuant to para. 2 shall not apply if we have maliciously concealed a defect or given an assurance of the characteristics of the Products nor to the Buyer’s claims under the Product Liability Act.
- The Buyer may only withdraw from the contract or declare its cancellation on grounds of a breach of duty that is not constituted in a defect if the breach of duty is within our responsibility. A free right of the Buyer to cancellation (in particular pursuant to Sec. 651, 649 BGB) is excluded. For the rest, the legal requirements and legal consequences apply.
§ 9 Limitation
- In deviation from Sec. 438 (1), no. 3 BGB, the general limitation period for claims based on property and legal defects shall be one year as of delivery.
- The foregoing limitation periods under the law on the international sale of goods also apply to contractual and non-contractual damage compensation claims of the Buyer, which are based on a defect of the Products, unless the applicability of the regular statutory limitation period (Sec. 194, 199 BGB) would result in a shorter limitation period in the individual case. Damage compensation claims of the Buyer according to § 8 (2) clause 1 and clause 2 (a) and pursuant to the Product Liability Act, however, shall become time-barred exclusively according to the statutory limitation periods.
§ 10 Data privacy
- We are authorised to process and store the data relating to the respective purchase agreements, insofar as this is required for the processing of the purchase agreement and for as long, as we are obligated to retain this data based on legal regulations.
- We reserve the right to transmit the customer’s personal data to credit bureaus, insofar as this is required for the purpose of an audit check, provided that the customer declares his explicit consent thereto in each individual case. We will also not pass on the personal data of customers to third parties in any other way without the explicit consent from the customer, except in cases where we are obligated by law to disclose the data.
- We are not permitted to gather, transmit or otherwise process the customer’s personal data for purposes other than the ones specified in this Article 10.
§ 10 Choice of law and place of jurisdiction
- These GTS and all contractual relationships between us and the Buyer are governed by the law of the Federal Republic of Germany in exclusion of international harmonised law, in specific the UN Convention on Contracts for the International Sale of Goods.
- If the Buyer is an entrepreneur, a legal entity of public law or a special fund under public law in the definition of the Commercial Code, the exclusive – also international – place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship is the place of our registered offices in Regenstauf. The same applies if the Buyer is an entrepreneur in the definition of Sec. 14 BGB. However, in all cases, we shall be entitled to file suit at the place of fulfilment of the delivery obligation according to these GTS and respectively according to an individual agreement taking precedence or at the Buyer’s general place of jurisdiction. Legal regulations taking precedence, in particular regarding exclusive jurisdictions, shall remain unaffected.