General Terms And Conditions
General terms and conditions of Chaps & More e. K. Owner Angelika Thaler-Jung, Lachtropweg 4, 32130 Enger, hereinafter referred to as “Seller” in business dealings with entrepreneurs, hereafter referred to as “Purchaser”:
§ 1 Scope
1. The following terms and conditions apply to all contracts concluded between the Seller and the Purchaser.
2. Purchasers in the sense of these conditions can be only businesses within the meaning of §§ 310 I, 14 of the German Civil Code (BGB).
3. Terms and conditions by the Purchaser contrary or deviating from these general terms and conditions are not recognised by the Seller and the Seller hereby expressly objects to them. Deviating general terms and conditions by the Purchaser, supplementary agreements and/or side agreements as well as commitments made by employees of the Seller are valid only when management expressly agrees. The statutory provisions to the primacy of the individual agreement remain unaffected.
§ 2 Offer and Conclusion of Contract
1. All offers by the Seller are without obligation, unless otherwise stated in the order confirmation.
2. As far as employees or other persons employed by the Seller make verbal side agreements or make assurances which go beyond the written contracts, they always require the written confirmation of the Seller.
3. The following rules apply to orders via the online shop “chaps-and-more”:
a. Prior registration
Prior to the first order in the online shop, the Purchaser has to enter the information about his/her company and his/her person. There is the option to order as a guest, or to register a customer account permanently. The Seller, in order to exclude sales to consumers, reserves the right to verify the business status by having the relevant documents sent, e.g. an extract from the trade register or a business licence. Should the business owner not comply with this request within a reasonable time, the Seller reserves the right to cancel the respective order and permanently deny the Purchaser access to its online shop.
b. Conclusion of contract on the internet
The offers by the Seller in the online shop are non-binding catalogue offerings. After entering the information required for ordering and by clicking on the button “Submit Order” as the last step of the purchasing process, the Purchaser makes a binding purchase offer to purchase the respective goods. The Purchaser has the opportunity to check his/her input again and, if necessary, to change it before the final click of the field “Submit Order”. To do this, he/she must merely click the respective link to the section to be modified in the last step of the ordering process “Order Summary” and can thus adjust the corresponding information. The Seller confirms the receipt of the order by e-mail. This confirmation e-mail at the same time represents the binding acceptance of the order. If no binding acceptance of the order or delivery of the goods occurs within 4 weeks after ordering, the Purchaser is no longer bound to his/her offer.
§ 3 Size of Order
1. Subject of the order is the proper production and/or delivery of the goods to the agreed extent.
2. If beyond the straight supply of goods, such as for special solutions, the production of goods is required, the following are binding for the execution of the order:
-Design drawings signed by the Purchaser or samples by the Seller, if created, and/or
-Dimensions and colours specified in the order.
3. The Seller reserves ownership and copyright to illustrations, drawings, calculations, offers and other documents. This also applies to those documents referred to as “confidential”. Prior to their disclosure to third parties the Purchaser requires the express written consent of the Seller.
§ 4 Prices
1. The seller’s specified prices are for delivery within Germany and are net plus the applicable statutory value added tax, currently 16%, and exclusive of the shipping costs from the factory.
2. For deliveries outside of Germany the following applies:
No sales tax will be charged by the Seller. The tax liability passes in accordance with § 13b of the Value Added Tax Act (UstG) to the recipient for deliveries within the European Community.
Duties, consular fees and otherwise collected taxes, levies, charges and the related costs, due to regulations outside of the Federal Republic of Germany, e.g. customs handling costs of logistics, are at the Purchaser’s expense.
3. The disclosure of shipping costs occurs separately according to weight. As does the disclosure of prices for transport packaging, in so far as this is charged separately due to a special customer request.
4. If, differing from the subject of the order, changes to the goods ordered are required which are subsequently desired by the Purchaser, the Seller reserves the right to a price change or price adjustment to the agreed price.
§ 5 Payment
1. For new customers payment is by prepayment, PayPal or credit card. For these payment types, the payment is due immediately with conclusion of the contract.
2. Starting with the second order we offer payment by invoice up to an order value of €500.00.
The invoice amount is to be paid within 30 days after the invoice date, unless different written agreements are made. Upon receipt of payment within 10 days after the date of invoice, we grant a 3% discount on the value of the goods only.
In case the payment deadline is exceeded, the payment accrues interest on arrears in the amount of 8% above the respective base interest rate of the European Central Bank. Furthermore, €3.00 are due for every reminder. We are in addition entitled to withhold any further deliveries of goods until the balance of the account receivable is settled.
For payments by way of cash on delivery – this is only available for purchases in the Federal Republic of Germany – the payment is due at the time of delivery by the shipping provider. Here, a cash on delivery fee of €8.00 is also due.
3. The Purchaser shall only be entitled to offset rights if his/her counterclaims are legally established, undisputed or acknowledged by the Seller. Retention rights may only be exercised in business traffic, if they are based on the same contractual relationship and a resulting undisputed or legally established counterclaim.
4. The Purchaser is not entitled to transfer claims from the contract. § 354a of the German Commercial Code (HGB) shall remain unaffected.
5. Bills of exchange and cheques are not accepted by us.
§ 6 Creditworthiness
If after acceptance of the order actually justified doubts as to the solvency or creditworthiness of the customer arise, we shall be entitled either to demand cash payment or advance payment or to withdraw from the contract and to demand damages for our expenses from the customer. These can be brought into account at a flat rate of 15% of the net value of the goods plus accrued freight and transport costs, wherein the customer is allowed to provide evidence of lower expenses.
§ 7 Delivery
1. The specified delivery times represent a guideline and apply in the sense of approx. time limits deemed to be agreed to only approximately. In the online shop the delivery times apply as specified with the respective items. For payments of cash in advance, the delivery takes place on the day following the day of payment by the Purchaser, for payments by PayPal, credit card, cash on delivery and by invoice delivery occurs immediately.
2. The customer guarantees that a receiving agent is available at the place of delivery. Any special circumstances such as restricted opening hours, different places of delivery and delivery obstacles are to be reported to us in a timely manner, at least two working days before dispatch.
3. Short selling requires a special contractual agreement. The same applies to dates or delivery times specified by the Purchaser. These are binding only on the express written confirmation by the Seller.
Commitment to binding delivery dates and deadlines is always subject to proper and timely self-delivery in so far as we can prove a congruent hedging transaction.
4. Circumstances for which the Seller is not responsible, unforeseeable and/or unavoidable circumstances preventing, delaying or making delivery substantially more difficult, free the Seller for the duration of its effect from the obligation to deliver and extend the delivery period accordingly.
The Seller is, however, obliged to promptly inform the Purchaser of the delays that occurred or are still occurring. The Seller is then entitled to a grace period of six weeks. After expiry of the grace period, both parts can withdraw from the contract.
5. If the Seller finds it impossible to deliver to the Purchaser because of non-execution of self-delivery and/or force majeure, the Seller reserves the right to withdraw from the contract. The right of withdrawal can only be exercised by the Seller effectively if she informs the Purchaser immediately about the non-availability of the goods and immediately reimburses already paid out consideration.
6. The risk transfers to the Purchaser in accordance with § 447 BGB with the delivery of the goods by the Seller to the carrier. On request the shipment can be insured at the expense of the Purchaser.
7. The Seller is entitled to partial delivery. For a replenishment, additional shipping costs only apply if this has been expressly agreed.
8. If the shipment is delayed upon request or through the fault of the Purchaser, the Seller stores the goods at the expense and risk of the Purchaser. In this case, the notification of the readiness for dispatch is equivalent to the shipping. In terms of costs, after the expiry of 14 days the Seller is entitled to charge a flat rate for storage charges in the amount of 1% of the net value of the goods for each started month, but not exceeding 5% of the invoice amount. The Seller retains the right to prove and pass on higher costs.
9. In the case of non-acceptance, the Seller, after she has given the Purchaser a deadline for acceptance, can make use of his/her legal right to require in particular claims for damages instead of performance.
10. If the Seller demands damages according to the above Subsection 9, then this is 15% of the purchase price. The compensation is set higher or lower if the Seller can prove higher or the Purchaser can prove lower damages. The Purchaser, in addition to the proof of lower damages, is also expressly allowed to prove that the Seller did not suffer damages.
11. If, according to the legal regulations for delay or impossibility of delivery, the Seller has to pay damages, then the claim amount the Purchaser is entitled to is limited to damage foreseeable at the time of the conclusion of the contract, but no more than 10% of the value of the part of the total delivery that could not be used in a timely manner or not according to the contract as a consequence of the delay or non-delivery. This limitation does not apply if the Seller is liable due to intent or gross negligence. The customer’s right to withdraw from the contract after fruitless expiry of a reasonable additional period set for us remains unaffected. Withdrawal rights that the customer or we are entitled to principally also extend to the unfulfilled part of the contract.
§ 8 Inspection Obligation, Notice of Defects, Redemption of Goods
1. The customer has to inspect received goods immediately upon arrival for defects and promised properties. If the customer is a merchant within the meaning of the German Commercial Code (HGB), the Seller is entitled to consider the persons signing the delivery note as authorised to acknowledge receipt. If the Purchaser wants to claim defects, then the notification of defects for obvious defects is only admissible if done immediately; the time of delivery and the date of receipt of the notification letter is decisive for the calculation of the time limit. The actions of the individuals who receive the goods have to be attributed to the Purchaser. As evidence for the justification of the complaint, it is necessary that the non-conforming goods are in the original delivery condition. For justified complaints, we will repair the faulty goods, replace them or give a credit according to our choice.
2. For the return of goods the Seller’s written consent must be obtained in any case, as the shipment may otherwise be refused.
3. If the Seller agrees to take back goods without being obligated to do so, the Purchaser has to send the Seller the goods within 7 days at his/her own expense and risk. Only goods in their original packaging and in good condition are accepted as returns. Unless otherwise agreed, the Seller is entitled to claim redemption costs amounting to up to 25% of the net value of the goods, as well as pro-rata incurred shipping costs.
4. The return of goods purchased from the chaps-and-more online shop as well as the return of goods dyed or otherwise specifically customised or separately manufactured upon the Purchaser’s request is excluded, unless required to comply with a legal obligation.
§ 9 Warranty/Liability
For any material or legal defects as well as any damages the Seller shall be liable as follows:
1. If an object that is supplied by the Seller is defective at the time of the transfer of risk, see Section 7.6, it will be repaired at the option of the Seller or redelivered. Replaced items become the property of the Seller again.
2. The Purchaser has to provide the Seller the necessary and adequate time and opportunity to determine insufficiency, as well as to carry out of all repairs that seem necessary to the Seller or the replacement delivery, otherwise the liability for deficiency damage and consequential damage is eliminated. Exceptionally, in cases of urgency, in particular to prevent disproportionately large damage, the Purchaser shall be entitled to rectify the defect himself or through third parties and to demand the reimbursement of necessary expenses from the Seller. Proof that waiting for the subsequent performance by the Seller cannot reasonably be expected from the Purchaser, is incumbent on the Purchaser.
3. Of the costs for repair or replacement due to a justified notice of defect, the Seller bears the costs of the expenses required for the purpose of subsequent performance, in particular transport, travel, work and material costs. To process a complaint, the Purchaser has to send the item to the Seller or to ready it for pick up. The Seller has to carry the costs of transport. In case of a return shipment a franking licence will be sent to the Purchaser or he/she can first stamp the shipment at his/her choice. In the latter case the Seller will refund the postage costs immediately. For shipments that are delivered without special arrangement via cash on delivery, the Seller reserves the right to refuse acceptance, and thus the subsequent performance of repairs or replacement, if necessary, according to § 439 III BGB.
4. The Purchaser has a right to withdraw from or to reduce the contract in line with the statutory provisions if the Seller – under consideration of the legal exceptions – lets a reasonable period of time set for the rectification of defects or replacement delivery pass fruitlessly. If only an insignificant defect exists, the Purchaser is merely entitled to the reasonable reduction of the agreed price.
5. The warranty is excluded in the following cases:
-Unsuitable or improper use, this also includes use on an unsuitable surface.
-Unsuitable or incorrect storage at the Purchaser’s premises.
-Minor deviations that do not exceed the customary industry deviations or range within the requirements of the guidelines or standards for goods. This applies in particular to the delivery of cut material.
-If materials supplied by the Seller are processed without the accuracy with regard to type, usability and shade having been checked by the Purchaser beforehand by sampling.
-Standard commercial or technical deviations of the shipment in quality, texture, weight, or colour.
-Standard commercial or minor manufacturing deviations in quality, texture, weight, or colour of the shipment from any templates or patterns.
6. If the Purchaser or a third party makes improper repairs, the Seller is not liable for the ensuing consequences. The same applies if the delivered goods are altered without the prior consent of the Seller.
7. For the culpable breach of contractual obligations, e.g. from advice or product information, the above provisions shall apply to the exclusion of further claims by the Purchaser.
8. For damage not caused to the delivered goods themselves, the Seller is only liable – regardless of the legal reason – for
-Premeditation and gross negligence by its entities or executives
-Culpable violation of essential contractual obligations by intent or gross negligence by non-managerial staff. Only in case of slight negligence is the claim to the contract-typical, reasonably foreseeable damage limited.
-Culpable violation of life, body or health
-Defects that were fraudulently concealed or the absence of which the Seller guaranteed.
In addition, liability under the Product Liability Act remains unaffected.
9. Otherwise any liability is excluded.
§ 10 Statute of Limitations
1. Material defects and claims for damages according to Section 9 reach their statute of limitations in 12 months.
2. In cases of injury to life, body or health, intentional or grossly negligent breach of duty and fraudulent concealment of a defect the statutory limitation periods shall apply just as with claims for damages according to the Product Liability Act.
§ 11 Withdrawal
1. The Seller is entitled to withdraw from the contract, insofar as it is determined during the execution of the order that the order for technical facts not predictable when placing the order and/or imputed facts, which were not or not fully communicated by the Purchaser when placing the order, cannot be fulfilled or cannot be fulfilled as agreed. In addition, the Seller can withdraw due to lack of creditworthiness of the Purchaser in accordance with Section 6.
2. Advance payments made by the Purchaser are to be refunded to the Purchaser by the Seller in case of contract withdrawal in accordance with Section 1, minus the Seller’s current expenses.
§ 12 Retention of Ownership
1. The Seller reserves the title to the goods (reserved goods) until receipt of all payments from the business relationship with the Purchaser.
2. If the Purchaser does not comply with his/her payment obligations despite a reminder with a specified deadline, the Seller can demand the surrender of the reserved goods still owned by the Seller without further prior notice. The Purchaser carries any associated transport costs. A withdrawal from the contract is always part of the repossession of the goods by the Seller. The Seller is entitled to sell the reserved goods after their return. The proceeds are to be credited to the liabilities of the Purchaser – minus reasonable processing costs.
3. The Purchaser shall inform the Seller of all access by third parties in writing without delay, in particular in case of enforcement measures, as well as other damage to his/her property. The Purchaser has to compensate the Seller for all damages and costs caused by a violation of this obligation and by necessary intervention measures against access by third parties, in particular an action according to § 771 of the Code of Civil Procedure (ZPO).
4. The Purchaser is entitled to resell the reserved goods in normal business transactions. The Purchaser transfers the receivables in the agreed amount of the final invoice (including sales tax) to the Seller which accrue from the resale of the reserved goods against his/her customers or third parties; whereby this assignment applies regardless of whether the goods were resold without or after processing. The Purchaser remains authorised to collect the claims even after the assignment. The Seller’s authority to collect the claim remains unaffected. The Seller, however, shall not make use of this power, as long as the Purchaser meets his/her payment obligations. As soon as the Purchaser is in default of payment or has made an application for opening insolvency proceedings or cessation of payment, the Seller may require that she be informed of all assigned receivables and their debtors, the Purchaser inform the debtors about the assignment and the Purchaser forward all documents and information required for the collection and the enforcement.
5. The Seller undertakes to release the securities due him/her at the request of the Purchaser in so far as the realisable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is the Seller’s.
§ 13 Additional Terms for Doing Business Abroad
1. All business including cheque business is governed by German law, including the German international private law and the standard commercial and technical practices applicable in Germany. The Purchaser submits to the German jurisdiction exclusively.
2. If the subject of the contract was delivered prior to payment of all amounts owed by the Purchaser as part of the joint business relationship, then it remains the property of the Seller until payment of these amounts is completed, as far as this is allowed under the law of the region that the delivered item is in. If this region does not allow the retention of title, but allows the Seller to reserve other rights to the delivered item, then the Seller can exert all such rights. The Purchaser is obliged to participate in actions the Seller wants to take to protect her right of ownership or in its stead any other right to the delivered item.
3. If during the period between conclusion of contract and delivery the agreed currency is re- or devalued by government intervention, both parts have the right to appropriate price adjustments. If taxes and customs fees of the Purchaser’s country are included in the price, and if these taxes and duties are changed in the period between conclusion of contract and delivery, the Purchaser reserves the right to correct the prices accordingly.
§ 14 Place of Jurisdiction and Miscellaneous
1. For all legal relationships between the parties the law of the Federal Republic of Germany applies under exclusion of the UN purchase right (CISG). The contract language is German.
2. Place of performance for the delivery is the seat of the Seller.
3. For all disputes with merchants within the meaning of the commercial code, legal persons under public law or special public assets, the place of jurisdiction of the court competent for the registered office of the Seller is agreed as exclusive. However, the Seller is entitled to assert her claims at the Purchaser’s general place of jurisdiction. This court agreement also applies to cheque or certificate processes.
4. Should individual provisions of this contract be wholly or partially invalid or later lose their legal validity, the validity of the rest of the contract shall not be affected. The legal regulation takes the place of the invalid provision.
Status. 2/2015
These General Terms and Conditions were originally written in German. To the extent the translated version of these General Terms and Conditions conflicts with the German version, the German version controls.
