General Terms and Conditions for Entrepreneurs (§ 14 BGB)
(as of November 2018)
§ 1. General
1.1. For our (BODEKU GmbH) supplies and services to entrepreneurs i.S.d. § 14 BGB (hereinafter referred to as “customer / customers”) apply exclusively to these General Conditions of Sale; We acknowledge opposing or deviating from our General Conditions of Sale or Terms of Purchase of the customer only insofar as we have expressly agreed to them in writing. They also have no effect if we have not contradicted them in individual cases.
1.2. These terms and conditions do NOT apply to consumers in the sense of § 13 BGB.
1.3 The regulation of Section 1.1. also applies to all future business with the customer.
1.4 The assignment of claims against us to third parties is excluded. § 354 a HGB remains unaffected.
1.5. The sale, resale and disposition of supplies and services as well as any related technology or documentation may be subject to German, EU, US export control laws and, if applicable, export control laws of other states. With the order, the customer declares conformity with such laws and regulations. The customer declares to receive all necessary permits for export or import.
1.6. We reserve the right to change these terms and conditions at any time. The customer will be notified of these changes in text form. If the customer does not contradict us in writing within 6 weeks of receipt of the notification of change, the amended General Terms and Conditions shall be deemed accepted. If unpredictable and unalterable changes occur after the conclusion of the contract (e.g. changes in the law) or if gaps are revealed, which significantly disturbs the relationship between performance and consideration, then we have the right to amend the general terms and conditions without the consent of the customer. The customer must also be informed about this in text form.
§ 2. Offer / scope of delivery
2.1. Our offers are non-binding. The offers in our online shop on the website [link] are a non- binding invitation to the customer to order goods from us.
2.2. Orders via the online shop are only binding if the customer confirms the order at the end of the order process via the button “order with payment”. Input errors can be corrected before confirming the order by going back in the ordering process. We will confirm receipt of the order placed via the online shop immediately by e-mail. In such an e-mail, however, there is still no binding acceptance of the order.
2.3. A contract is concluded only if we have this offer within a period of 14 calendar days with sending an order confirmation or accept delivery of the ordered goods. The order is confirmed by sending an e-mail. After fruitless expiry of this period the offer is rejected.
2.4. Should the order confirmation or any other legally binding statement by us contain typographical or printing errors or should the pricing be subject to transmission errors, we shall be entitled to challenge the statement of error.
2.5. We can only accept orders for deliveries abroad from a minimum order value of EUR 100.00.
§ 3. Information / Consultations
All information and inquiries in our online shop about the suitability and use of our goods are not binding and do not exempt the customer from their own examinations. For any liability, Section 10 of these General Conditions of Sale shall apply.
§ 4. Prices
4.1. Our prices quoted in the online shop are “ex works”, excluding packaging, insurance, freight and, if applicable, a minimum quantity surcharge. These items will be billed separately. The disposal of the packaging is at the customer’s own expense.
4.2. All prices are net prices without sales tax. This will be calculated and shown separately in the invoice at the statutory rate on the day of invoicing (currently 19%).
4.3. All prices, including packaging and shipping, are valid only at the time of ordering. By changing and updating our website, all previous prices and other information about goods will be void. The valid version at the time of the order is decisive.
4.4. Additional services and special arrangements that can not be booked directly through the website, such as commission or express delivery always require a separate agreement and are therefore charged separately.
§ 5. Payments
5.1. Payments must always be made in advance. In the event of late payment, the provision of Section 5.2. and in addition to this the statutory rules regarding late payments.
5.2. In case of default or threat to our claims due to deterioration of the creditworthiness of the customer, we are entitled to make our claims from the business relationship with the customer due. We are then also entitled to carry out outstanding deliveries only against advance payment or against the provision of collateral. If the customer is unable to provide security within a reasonable period after setting a deadline with the threat of possibly withdrawing from the contract, we have the right to withdraw from the contract.
5.3. We are entitled to default interest of 9 percentage points above the applicable base interest rate of the ECB p.a. to promote. This does not affect the possibility of asserting higher actual damages.
5.4. The withholding of payments due to the assertion of rights of retention or the settlement with counterclaims by the customer are only permitted if these counterclaims are undisputed or legally binding.
§ 6. Delivery time
6.1. Unless otherwise expressly agreed, we deliver ex factory or warehouse to the delivery address provided by the customer.
6.2. The availability of the goods and the delivery date result from the information in the online shop.
6.3. Delivery dates and delivery times, which can be agreed as binding or non-binding, must be stated in writing and are only agreed with the proviso of the correct and timely delivery by our suppliers.
6.4. The agreed delivery deadline is met if the delivery item has left the factory by the time the order expires.
6.5. War, strike, lockout, lack of raw materials and energy, traffic and unavoidable breakdowns, orders from high hand – even if they make the execution of the business concerned sustainably uneconomic for the foreseeable future – as well as all other cases of force majeure, even at our suppliers, free for the duration of the disruption and to the extent of its impact from the obligation to deliver. Such events entitle us to withdraw from the contract in whole or in part, without the customer having a right to compensation.
6.6. Partial deliveries are permissible and have to be paid according to the conditions, insofar as they are reasonable for the customer.
§ 7. Transfer of risk and acceptance
7.1. With the dispatch of the delivery item, at the latest when leaving the factory or warehouse, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer. This applies regardless of who carries the freight costs.
7.2. If the customer is in default of acceptance, we are entitled to demand compensation for expenses incurred by us; upon default of acceptance, the risk of accidental deterioration and accidental loss passes to the customer.
7.3. Delivery items are to be accepted by the customer, even if they have insignificant defects, without prejudice to the rights of Section 9 of these conditions.
§ 8. Reservation of ownership
8.1. The delivery items remain our property (reserved goods) until the fulfilment of all claims, regardless of the legal grounds, from the legal relationship underlying the delivery.
8.2. In the case of processing, combining and mixing of the reserved goods with other goods by the customer, we are entitled to co-ownership of the new object in proportion of the invoice value of the reserved goods to the value of the other goods used. If our property ceases to be processed, combined or mixed, the customer hereby assigns to him the ownership rights to the new stock or the property to the extent of the value of the reserved goods and holds them free of charge for us. The co-ownership rights arising from this shall be deemed to be retained goods within the meaning of Section 8.1.
8.3. The customer is only entitled to process the goods subject to retention of title, to combine them with other goods and to mix or resell them as long as he is not in default within the framework of a proper business operation. Any other disposal of the reserved goods is inadmissible. Attachments made by third parties or other accesses to the reserved goods must be reported to us immediately. All intervention costs shall be borne by the customer insofar as they can not be collected by the third party. If the customer pays the buyer the purchase price, he has to reserve the ownership of the reserved goods to him under the same conditions under which we have reserved the property upon delivery of the reserved goods. Otherwise, the customer is not authorized to resell.
8.4. The claims of the customer from the resale of the reserved goods are hereby assigned to us. They serve as security for the same extent as the reserved goods. The customer is entitled and authorized to resell only if it is ensured that the claims to which he is entitled are transferred to us.
8.5. If the reserved goods are sold by the customer together with other goods not supplied by us at a total price, the assignment of the claim from the sale takes place in the amount of the invoice value of our respectively sold reserved goods.
8.6. The customer is authorized until our revocation to collect the claims assigned to us. We are entitled to revoke if the customer does not meet his payment obligations from the business relationship with us properly. If the conditions for the exercise of the right of revocation are present, the customer has to notify us immediately of the assigned claims and their debtors, to provide all information necessary for the collection of the claims, to hand over the pertinent documents to us and to notify the debtor of the assignment. We are also entitled to submit an assignment to the debtor.
8.7. If the value of the collateral existing for us exceeds the secured claims by a total of more than fifteen percent (15%), we are obliged to release collateral of our choice at the customer’s request.
8.8. If we assert the reservation of title, this shall only be deemed to be a withdrawal from the contract if we expressly declare this in writing. The right of the customer to own the reserved goods expires if he does not fulfil his obligations under this contract.
§ 9. Warranty, material defects
9.1. The warranty claims of the customer in case of defects shall be governed by the statutory provisions within the statutory periods, unless deviations result from the following regulations.
9.2. When purchasing new delivery items, the warranty claims of the customer expire in the event of defects with expiry of one year from receipt of the delivery items.
9.3. When purchasing used delivery items, the warranty claims of the customer are excluded.
9.4. The limitation period of one year or the exclusion of the warranty shall not apply if the obligation to pay compensation is based on a physical injury or damage to health due to a defect for which we are responsible or intentional conduct or gross negligence or his vicarious agents. Notwithstanding, we are liable under the Product Liability Act.
9.5. The warranty does not apply if the customer changes the delivery items without our consent, has them modified by third parties or used improperly and the elimination of the defects becomes impossible or unreasonably difficult. In any case, the customer has to bear the additional costs incurred by the change to remedy the defect.
9.6. The customer is obligated to examine the delivery item upon delivery for any defects and to notify us immediately in writing. The relevant regulations and legal consequences of the HGB apply accordingly.
9.7. If a notice of defects proves to be unjustified, the customer shall reimburse us for all expenses incurred by us.
§ 10. Liability for damages due to fault
10.1. Our liability for damages, for whatever legal reason, in particular from impossibility, delay, inadequate or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort is, as far as it is in each case at fault, in accordance with this Section 10 restricted.
10.2. We are not liable in case of simple negligence of our organs, legal representatives, employees or other vicarious agents as far as it is not a violation of essential contractual obligations. Material contractual obligations are those which give the parties the right to be granted by the contract according to its content and purpose, in particular the obligations whose fulfilment enables the proper execution of the contract in the first place and to which the contractual partner regularly adheres familiar and trust.
10.3. As far as we comply with Section 10.2 are basically liable for damages, this liability is limited to damages which we foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which we should have foreseen by applying due diligence. Indirect damage and consequential damage, which are the result of defects in the delivery items delivered, are also only substitutable, as far as such damage is typically to be expected under normal use of the goods.
10.4. In the case of liability for ordinary negligence, our property damage and the resulting additional financial loss amount to EUR 3,000,000.00 per claim (in accordance with the current coverage of our product liability insurance or liability insurance), even if it is a violation of essential contractual obligations.
10.5. The above disclaimers of liability and limitations apply to the same extent in favour of our organs, legal representatives, employees and other vicarious agents.
10.6. Insofar as we provide technical information in our online shop and this information does not expressly belong to the contractually agreed scope of services owed by us, this is done free of charge and to the exclusion of any liability.
10.7. The limitations of liability of this Section 10 shall not apply to our liability for (i) intentional and grossly negligent conduct, (ii) guaranteed characteristics, (iii) injury to life, body or health or (iv) under the Product Liability Act.
§ 11. Data protection
11.1. Data processing takes place in accordance with the applicable German Federal Data Protection Act (BDSG), the EU General Data Protection Regulation (EU-DSGVO) and the German Telemedia Act (TMG).
11.3. Insofar as the customer should provide or discontinue personal data of third parties in the online shop, he is responsible to us and ensures that this is permitted under the applicable data protection regulations.
11.4. The parties undertake to treat confidentially all confidential information that becomes known to them in the execution of this contract and to use it exclusively for contractually agreed purposes and not to pass it on to third parties or to exploit it. The parties undertake to bind their employees and employees as well as other parties accordingly.
11.5. Confidential information within the meaning of this provision is information, documents, information and data which are designated as such or are to be regarded as confidential in nature.
§ 12. Miscellaneous (Others)
12.1. The substantive law of the Federal Republic of Germany applies; the validity of the UN Purchase Law (CISG) is excluded.
12.2. Should one or more regulations of these terms and conditions be ineffective, this does not entail the invalidity of the entire contract.
12.3. Unless otherwise stated in the order confirmation, our place of business is the place of performance.
12.4. If a “written” transmission is assumed in these conditions, this can be adhered to by the electronic form (§ 126a BGB) or the text form (§ 126b BGB), whereby proof of access lies with the sender.
12.5. If the customer is a merchant, a legal entity under public law or a special fund under public law, Wuerzburg is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the customer is domiciled abroad.