General Terms & Conditions for the Böllhoff GmbH B2B eshop

Transcription

1 General Terms & Conditions for the Böllhoff GmbH B2B eshop 1. Scope 1.1 These terms and conditions contain the conditions agreed between you (hereinafter also referred to as Customer and you ) and us, Böllhoff GmbH, Archimedesstr. 1-4, Bielefeld, a company registered with Bielefeld District Court under reg. no. HRB (hereinafter also referred to as Böllhoff, we or us ) and which shall apply in exclusivity unless amended by means of written agreement(s) made between you and us. Differing or contradictory conditions shall not be recognised by us unless we have given our express agreement to these in writing. These terms and conditions shall apply to all orders, contracts, deliveries and services or other deliverables agreed between Böllhoff and the Customer via the Böllhoff eshop at These conditions shall also apply to all future orders placed by the Customer in the Böllhoff eshop. Further information on Böllhoff's contact data may be found in our Legal & Publication Details. 1.2 You will be notified in writing, by fax or , of any amendments to these terms and conditions. Should you fail to object to such amendment within 4 weeks of receipt of notification, the amendments shall be deemed to have been recognised by you. In the case of such amendment, your attention will be drawn once again specifically to your right of objection and to the legal consequences of any failure to act. 1.3 Our General Terms & Conditions may be found at our website under General Terms & Conditions. They may also be saved locally or printed out. Our General Terms & Conditions may also be downloaded and saved in PDF format here. 2. Registering as a user 2.1 No charge is made for registering on our Böllhoff eshop. To place an order via the Böllhoff eshop you must be registered on our electronic trading system (no guest orders possible). The Böllhoff eshop is intended for trade use only, i.e. for use by businesspeople as defined by Sect. 14 of the German Civil Code and/or merchants or traders as defined by the German Commercial Code. Registration of consumers (Sect. 13 of the German Civil Code) on the Böllhoff eshop is prohibited, with the effect that the goods offered for sale by the Böllhoff eshop are sold to businesspeople and/or merchants or traders only. Please quote your VAT registration number fully and accurately when registering. Without quoting a valid VAT registration number you will be unable to register on the Böllhoff eshop and place orders. To gain access to the Böllhoff eshop please fill in the registration form electronically on our website (taking care to complete all mandatory fields) and send this to us. The information required for registration purposes must be given truthfully and in full. The address given by you will be used as your user name. When registering, please choose a password. You are under an obligation to select a secure password, at least 8

2 characters in length and containing at least one special character %, $ etc. ) and to keep the password confidential, retaining it in a safe place and not divulging it to third parties under any circumstances. After entering your registration details and clicking the Register now button, you will receive an confirming receipt of registration and notifying you that your data is being checked. Once your status as a businessperson has been verified, you will receive an acceptance . Only then will you be able to place orders via the Böllhoff eshop. Böllhoff reserves the right to refuse the registration, for example where adequate or unambiguous evidence of the Customer's status as a businessperson is not forthcoming. Böllhoff shall not be under any obligation to accept registration or any order placed by a registered customer. 2.2 With the exception of your agreement to these General Terms & Conditions, our Data Privacy Rules and our Terms of Use, your registration carries no obligations whatsoever. You can delete your registration entry at any time under My Account. Registration does not, of itself, create any obligation to buy any goods offered on our website. 2.3 During entry, your registration details are protected by SSL encryption. 2.4 Should your business details change in any way, responsibility for updating them rests with you alone. Please inform us immediately of any changes using the electronic form available on our website. 3. Entry into contract Depiction of products in the Böllhoff eshop does not represent any legally binding offer on the part of Böllhoff. Böllhoff's offerings on our website merely represent a non-binding invitation to order goods from Böllhoff. The Customer order, placed by clicking the Buy now button, is a legally binding offer to purchase the goods placed by the Customer into the shopping cart and located therein, and receipt of such offer will be confirmed electronically by Böllhoff without delay. Such confirmation does not represent a confirmation of order or, hence, acceptance by Böllhoff of the offer concerned. Böllhoff's acceptance of the offer is made by Böllhoff either confirming its acceptance of the Customer's order by means of a separate to the Customer or sending the Customer a confirmation of dispatch or, at the latest, by shipping the goods. No order can be placed before the Customer has acknowledged the co-validity of these General Terms & Conditions. Böllhoff shall be entitled to accept the Customer's offer within 5 calendar days of its receipt of the order. Should this deadline expire without action, the Customer's offer shall be deemed to have been refused. The steps leading up to entry into a contract are as follows: First, the Customer must place the item(s) selected by him into the shopping cart. In doing so, he is also able to change the quantity of the item.

3 By clicking the Next button, the Customer advances to the invoice and delivery address summary page. By clicking the Next button, the Customer advances to the payment method summary page where the method of payment is chosen. By clicking the Next button, the Customer advances to the order summary page ( Check order ). This page displays a collation of all the order details, following entry and prior to the order being sent off, together with the opportunity for the Customer to check for errors and correct as necessary. Where the Customer wishes to correct any details, he may do so by clicking any of the Make changes to shopping cart, Change address or Change payment method buttons. Up to this point it is possible at any time to remove any item placed in the shopping cart or to change the item quantity. During the next step, the Customer may click the Buy now button to make a binding offer to Böllhoff. 4. Delivery terms 4.1 Compliance with our delivery obligation shall be contingent upon timely and proper fulfilment of the Customer's obligations. 4.2 Where a delay in delivery is for reasons outside Böllhoff's control (e.g. force majeure or third party default), the delivery deadline shall be extended by an appropriate amount of time. The Customer will be notified of this without delay. Where the delay lasts longer than 4 weeks after the original delivery lead-time has lapsed, both the Customer and Böllhoff shall each be entitled to rescind the contract. 4.3 Shipment shall be ex-works and shall at all times be at the Customer's own risk and expense. 4.4 The item(s) being delivered shall be insured against transit damage only following prior instruction by the Customer and the Customer's expense. 5. Delivery territory Delivery of our products shall be to addresses within the Federal Republic of Germany only. No foreign shipments will be made. 6. Prices, payments and minimum order value 6.1 The Customer may avail himself of the payment options displayed when completing the ordering process. Böllhoff currently offers Customers the ability to pay in advance or by invoice. Other payment methods are not currently possible. 6.2 The prices quoted for each item on our website are ex-works prices excluding shipment and excluding value-added tax which shall be added at the relevant statutory rate.

4 VAT shall be charged at the statutory amount applicable on the date of invoice and will be shown as a separate item. Shipping costs arising are listed separately in the product description and will be shown separately on the invoice. 6.3 Unless agreed otherwise, payments must be made (without deduction) within 14 days of the date of invoice. Deduction of early payment discount shall require special written agreement. 6.4 Where advance payment is to be made, shipment will be made once the full purchase price has been credited to our account. Where advance payment is to be made, we will notify the Customer of our bank details in the order confirmation. Böllhoff reserves the right to refuse the Customer payment by invoice and to select the advance payment method instead. 6.5 Minimum order value: A minimum order value of EUR excl. VAT shall apply. This means that Böllhoff shall only process the order and carry out delivery where the value of items in the shopping cart is EUR (excluding VAT and shipment costs). 7. Payment arrears 7.1 Failure to pay the purchase price by the due date shall constitute a fundamental breach of contractual obligations. 7.2 Where the Customer gets into payment arrears, Böllhoff shall be entitled to charge interest at the rate of 9 percentage points above the ECB base rate. 8. Warranty 8.1 Customer entitlement to rectification of defects shall be contingent upon the Customer having fulfilled his inspection and complaint obligations pursuant to Sect. 377 of the German Commercial Code. The Customer shall be bound to inspect the goods immediately after delivery, insofar as this is feasible in the ordinary course of business, and, where a defect be in evidence, to report this to Böllhoff without delay. Where the Customer fails to notify us, the goods shall be deemed to have been approved unless the defect is one which was incapable of being detected during inspection. Where such defect comes into evidence at a subsequent date, notification thereof must be made immediately following its discovery; otherwise the goods shall be deemed to have been approved even in view of such defect. 8.2 Where the delivered goods are defective, you are entitled under statutory regulations to demand that such defects be remedied by way of repair or replacement with conformant materials. We shall be entitled to choose the type of remedy to be made. Böllhoff reserves the right to make 2 attempts at remedy. Where the remedy fails or where the Customer

5 cannot reasonably be expected to accept the remedy, you shall be entitled to a reduction in purchase price or, where the statutory requirements are met, to rescind the contract. 8.3 The customer s rights and entitlements arising from material defects shall lapse in the case of new items 1 year after goods have been shipped. No warranty shall be provided on used items. Exceptions to the above rule shall be made for rights and entitlements arising from culpable injury to life, limb or health and for rights and entitlements arising from wilful or grossly negligent violation of duties on the part of Böllhoff or any of its legal representatives or agents and in the event of deceitful failure to disclose any defect or provide a warranty or, in the case of new items, where rights of recourse are invoked pursuant to Sect. 479 of the German Civil Code. The statutory period of limitation shall apply in such instances. 9. Limitation of liability 9.1 We shall pay compensation, irrespective of legal reason, to the following extent only: In cases of malicious intent and gross negligence including malicious intent and gross negligence on the part of our representatives or agents In cases of minor negligence for breach of a key contractual obligation only, and in such cases up to a maximum of the predictable loss typically occurring. Key contractual obligations shall be taken to mean such basic duties and obligations which have had a decisive bearing on the Customer's decision to enter into the contract and whose fulfilment is key to proper execution of the contract, whose violation poses a risk to the purpose of the contract and in compliance with which the Customer may routinely be expected to place his trust. We shall not be held liable in any other circumstances Liability for culpable injury to life, limb or health shall remain notwithstanding; this shall also apply to mandatory liability under the Product Liability Act and to liability under the Federal Data Protection Act and to any other mandatory liability under law and in the case of fraudulent concealment of defects or assumption of a guarantee. For any and all claims and entitlements under Clause the statutory limitation period shall apply. 9.2 Given current technology, data communications via the Internet cannot be guaranteed to be fault-free and/or available at all times. To this extent we do not accept liability for any lack of continuous and uninterrupted availability of our online trading system. No assignment of damages claims shall be permitted.

6 10. Setting off No setting off shall be permitted against payments due to Böllhoff unless the Customer's counterclaim has been established by a court of law or is undisputed by Böllhoff. The Customer shall only be entitled to exercise a right of lien where his/her/its claim has its basis in the same contract. 11. Retention of title 11.1 We reserve title to the merchandise pending receipt of all payments arising from the business relationship with the Customer. Where the Customer behaves in a manner contrary to that contractually agreed, in particular in cases of payment default, we shall be entitled to repossess the merchandise. Repossession of the merchandise by us shall be deemed equivalent to rescindment of contract. Following repossession of merchandise we shall be entitled to dispose of it at will, the proceeds so arising shall be offset against the Customer's liabilities less reasonable costs of disposal The Customer shall be obliged to handle the merchandise with care In cases of seizure or other third party interventions the Customer shall be obliged to inform us immediately in writing in order to enable us to initiate proceedings under Sect. 771 of the Code of Civil Procedure. Where the third party is unable to reimburse us for the judicial and extrajudicial costs of an action under Sect. 771 of the Code of Civil Procedure, the Customer shall be liable for the loss incurred The Customer shall be entitled to sell the merchandise on in the ordinary course of business; however, he now hereby assigns to us in the amount of the final invoice total (including VAT) of the receivable due to us all claims accruing to him from the resale to his customers or third parties irrespective of whether the merchandise has been sold on with or without additional processing. The Customer shall remain empowered to collect this receivable even following assignment. Our authority to collect the claim ourselves shall remain notwithstanding. However, we undertake not to collect the claim for as long as the Customer meets its payment obligations from the proceeds so arising and does not fall into arrears and, in particular, for as long as no application is made to open insolvency proceedings or suspend payments. Where such conditions are not met, however, we may demand that the Customer inform us of the assigned claims and their debtors, that he provide all information required for collection and that he hand over the relevant documents and inform the debtors (third parties) of the assignment Processing or transformation of the merchandise by the Customer shall in all instances be conducted to our benefit. Where the merchandise is processed using other items not belonging to us, we shall acquire joint ownership of the new item in an amount commensurate to the value of the merchandise (final invoice amount including VAT) in relation to the other processed items at the time of processing. All other matters relating to

7 the items produced by means of processing shall be as for goods delivered under reservation of title Where the merchandise is inseparably mixed with other items which are not our property, we shall acquire joint ownership of the new item in an amount commensurate to the value of the goods (invoice total including VAT) in relation to the other mixed items at the time of mixing. Where the mixing is undertaken in such a way that the Customer's item may be regarded as the main item, it shall be deemed to have been agreed that the Customer shall assign proportional co-ownership to us. The Customer shall retain to our benefit the sole or co-ownership so arising We shall undertake to release the sureties due to us upon request of the Customer insofar as the realisable value of our sureties exceeds the secured claims by more than 10%; the choice of sureties to be released shall be at our discretion. 12. Use of data Data processing shall be carried out in accordance with the Federal Data Protection Act ( BDSG ) and the Telemedia Act ( TMG ). For details please refer to our Data Privacy Policy. 13. Storage of contract text Böllhoff stores the contract text and the order data and sends the order to the customer by . The Customer can use the My Account function (sub-section My Order History ) to retrieve previous orders. 14. Electronic invoices Invoices are sent out electronically. Delivery is by to the address specified by the Customer. The Customer may object at any time to the transmission of invoices in electronic form. In such instance the Customer will be sent an invoice in hard-copy form, but is obliged to bear the additional costs of delivering the hard-copy. 15. Applicable law, place of fulfilment and place of jurisprudence 15.1 The Law of the Federal Republic of Germany shall apply, specifically excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) Unless agreed otherwise, the place of fulfilment for all obligations arising from the contractual relationship between Böllhoff and the Customer shall be the location in which Böllhoff's main registered office is situated The place of jurisprudence for all disputes arising from, or in connection with, the contractual relationship between Böllhoff and the Customer shall be Bielefeld or, at Böllhoff's discretion, the Customer's general place of jurisprudence.

8 16. Final provisions 16.1 The contract language shall be German or English, depending on which language has been selected by the Customer upon commencement of the ordering process The Customer's rights under the contract, with the exception of monetary claims, shall be non-transferable Should individual provisions contained in the contract and in these stipulations be unenforceable in whole or in part, or should they be at odds with statutory regulations, the contract and the validity of the remaining provisions shall remain notwithstanding. The unenforceable provision shall be replaced by the Parties hereto, acting in mutual agreement, by a legally enforceable provision which approximates most closely to the economic purpose and intent of the unenforceable provision. The above provision shall apply accordingly to any omissions in the provisions.