General terms and conditions
§ 1 Scope
(1) These general terms and conditions ("GT&Cs") apply to all our offers, deliveries and services to commercial customers. There is no delivery to consumers, i.e. natural persons, concluding a legal transaction for a purpose which can mainly neither be attributed to their commercial nor their self-employed professional activity.
(2) These GT&Cs also apply to all future business between the parties even if we complete the delivery of the goods being aware of deviating or opposed conditions. Differing GT&Cs and purchase conditions of our customers shall not apply and are not accepted even if we do not explicitly contradict them.
(3) There are no oral agreements.
(4) Individual agreements regarding the rights and duties of the parties shall take priority over these GT&Cs.
§ 2 Contract conclusion
(1) The presentation of the products in our online shop is an unbinding invitation to make offers. You submit an unbinding offer to buy the goods you put into your shopping part if on the order confirmation page, you click the "Buy now" button. We will inform you about the receipt of your order by means of an acknowledgement of receipt. This acknowledgement of receipt does not yet constitute an acceptance of your offer; it is only to inform you that we have received your order. The purchase contract will only come about by the dispatch of an order confirmation or delivery of the articles you ordered. We may accept your offer within 10 working days. A contract will only come about with this acceptance.
(2) We will save the contract text after contract conclusion. It will then, however, no longer be accessible online
§ 3 Prices / dispatch
(1) The specified prices are net prices. They are quoted ex warehouse (excluding packaging and dispatch) plus the valid value added tax. Different prices that may be shown on pages which are loaded from buffers (browser cache, proxies, etc.) are not current and invalid.
(2) The resulting shipping costs depend on the product type and the selected mode of dispatch. For more details, refer to the "Dispatch" area. If we complete partial deliveries without consulting the customer, we will bear the resulting additional costs.
(3) We do not take back any packaging; it becomes the customer's property; this does not apply to pallets.
(4) In case of delivery to non-EU countries, additional customs and duties will incur, possibly also import sales tax. These costs are to be borne by the customer.
(5) If the period between the contract conclusion and the delivery date intended for the entire delivery or parts thereof is longer than 4 months and if after the contract conclusion, the market prices for the goods increase by more than 5%, we are entitled to increase the price for those parts of the total delivery intended for delivery after expiry of 4 months to a corresponding extent. If the price increase asserted by us amounts to more than 5% of the price of the partial (or total) delivery concerned, the customer is entitled to rescind the contract within two weeks after receipt of our notification regarding the price change; the right to rescission is limited to those parts of the total delivery for which we have increased the price.
(6) If it becomes apparent after conclusion of the contract that our claim to the purchase price is endangered to due a lack of capacity on the part of the customer (e.g. by the application for the opening of insolvency proceedings), we are - according to the legal provisions - entitled to refuse service and - if applicable after setting a deadline - to rescind the contract (§ 321 BGB = German Civil Code).
§ 4 Payment
(1) The price for the goods can be paid in advance or against invoice. We reserve the right to only carry out the order against payment in advance in individual cases. In such case, the customer may accept this or withdraw their order.
(2) The purchase price is due for payment net, within 30 days after invoicing. After maturity, default interest amounting to 8 percentage points above the relevant basic interest rate p.a. will be charged. We reserve the right to assert any more far-reaching damage caused by the delay.
(3) We are entitled to assign the claims against our customers resulting from the business relationship to third parties unless the assignment of claims is legally excluded.
§ 5 Delivery period
(1) The estimated delivery periods are indicated on our website. If, by way of exception, the goods are not available or not available within the specified estimated delivery period, we will inform you accordingly before accepting the order.
(2) Compliance with agreed delivery periods and dates requires the timely performance of the customer's contractual obligations.
(3) If a fixed delivery period has been explicitly agreed upon, this period will be extended due to unforeseeable and exceptional events which we were unable to prevent despite performance of our duty of care reasonable according to the circumstances of the case, particularly strike and lockout, operational disruptions, delays in the delivery, energy supply difficulties, unfavourable weather conditions, etc. The same shall apply if these circumstances occur at sub-suppliers. We will immediately inform the customer about the extension of the delivery period. The delivery period will be extended according to the duration of such measures and obstacles. If the obstruction lasts for more than three months, the customer is - after unsuccessful expiry of a reasonable respite set by them - entitled to rescind the contract; more far-reaching claims on the part of customer are excluded.
§ 6 Delivery/passing of the risk/default of acceptance
(1) The delivery is effected ex warehouse. The goods will be sent to the customer at their request and their expense. We are entitled to independently determine the mode of dispatch.
(2) Upon handover of the goods to the forwarder, carrier or any other - also own - forwarding agents, the risk of accidental loss and accidental deterioration of the goods ("passing of the risk") passes to the customer. The goods will only be insured against damage in transit at the customer's explicit request and at their expense. If the customer collects the goods in our warehouse, the risk will pass upon handover of the goods to the customer.
(3) There will also be a default of acceptance on the part of the customer if we only offer the service to them in writing. So § 294 BGB is waived. The usual legal prerequisites of a default of acceptance shall remain unaffected. In case of default of acceptance, we are entitled to rescind the contract and/or request damages due to non-performance.
§ 7 Warranty
(1) One prerequisite for all warranty claims of the customer is their proper satisfaction of all obligations to inspect and give notice of defects owed according to § 377 HGB (German Commercial Code). If a defect becomes apparent during the inspection or later, we shall be informed about this fact immediately and in writing. The notification shall be regarded as having been made immediately if it is made within two weeks whereas it is enough to post the notification in due time in order to keep the deadline. Irrespective of this obligation to inspect and notify defects, the customer shall notify apparent defects (including wrong and short deliveries) within two weeks from the delivery in writing whereas here, as well, it is enough to post the notification in due time in order to keep the deadline. If the customer does not properly satisfy their obligation to inspect and/or notify defects, our liability for the defect which has not been notified shall be excluded.
(2) Warranty claims can only be asserted within 12 months after passing of the risk.
(3) As supplementary performance, we may choose between removal of the defect and delivery of a defect-free object. The customer shall give us the opportunity and the time required for the owed supplementary performance; they shall particularly hand over the objected good for inspection. In case of replacement delivery, the customer shall return the defective object to us according to the legal provisions. The supplementary performance does neither include the removal of the defective object nor the re-installation unless we have originally been obliged to install the object.
(4) If the supplementary performance has failed or if a reasonable period to be set by the customer for the supplementary performance has expired unsuccessfully or can be waived according to the legal provisions, the customer may rescind the contract or reduce the purchase price. With an insignificant defect there is, however, no right to rescission.
§ 8 Reservation of title
(1) The supplied goods shall remain our property until complete satisfaction of our purchase price claim including possible accessory claims as well as all other claims we have against the customer. In case of contract violations on the part of customer including default in payment we shall be entitled to rescind the contract according to the legal provisions and to take back the goods. If we take back the goods, this shall constitute a contract rescission.
(2) The customer shall treat the goods carefully, insure them appropriately and maintain them, as far as necessary.
(3) In case of attachment of the reserved goods by third parties or in case of other interventions by third parties, the buyer shall refer to our property and inform us immediately and in writing so that we can enforce our property rights.
(4) The retention of title shall also remain in force if we have a current account relationship with the customer. With an open account, the reserved goods as well as the resulting claims are regarded as security for the balance claim.
(3) If our reserved goods are combined or mixed with own goods of the customer or with reserved goods of third parties, this is always done on our behalf and for us. In this case, we will acquire the co-ownership in the combined or mixed inventory in the ratio of the value of our reserved goods to the other goods at the time of the combination or mixture. If the goods combined or mixed with our reserved goods are to be regarded as main object or if our reserved goods are processed with own goods of the customer or reserved goods of third parties to form a new object, this is also always done on our behalf and we will also acquire the co-ownership in this object according to the value of the share of our reserved goods to the other goods. The customer shall store the inventory of the combined or mixed goods, the main object or the new object for us free of charge. We will not raise a claim to the increase in value caused by the combination, mixture or processing.
(5) The new goods which are our property and/or our co-property shall serve as security for our claim in the same way as the reserved goods originally delivered by us.
(6) Until revocation, the customer shall be entitled to resell our reserved goods within the scope of usual business transactions. The customer shall not be entitled to dispose of the reserved goods in any other way, they shall particularly not be entitled to pledge the goods or assign them by way of security. The customer already now assigns to us their claim and all ancillary rights under the resale of our reserved goods as security for all the claims we have against the customer at the time of the resale. We hereby accept the assignment. The same shall be true for claims replacing the resale claim and/or substituting it (e.g. insurance benefits, etc.).
(7) The customer is entitled to collect the claims assigned to us for us. Our right to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claims as long as the customer properly satisfies their payment obligations. If the customer behaves in a contract-violating manner, the customer's collection right will forfeit and we shall be entitled to disclose the assignment to the customer's purchasers. The customer shall insofar be obliged to provide the necessary information and to surrender the documents, particularly to hand over a complete customer list specifying the company/name and address of as well as the amount of receivables from their purchasers.
(8) If the value of the claim assigned to us as security exceeds our claims against the customer by more than 10%, we are - at the customer's request - obliged to release any more far-reaching securities at our choice.
§ 9 Limitation and/or exclusion of our liability
(1) The customer is obliged to carefully observe both, our instructions for use/operating instructions and our safety instructions. The customer shall particularly observe our instructions specifying how the goods are to be used in a risk-free manner, which precautions are to be taken regularly and in the individual case and which misuse is to be avoided. If the customer violates this duty, we shall not be liable for any resulting damage.
(2) Limitation of our liability in case of damage caused by defects and consequential damage:
We shall not be liable for damage caused by defects (including damage resulting from lost profit) and not for consequential damage, regardless of the legal ground. This exclusion of liability shall not apply to claims of the customer to compensation which are based on gross fault (intention/gross negligence).
(3) Limitation of our liability in case of ordinary/simple negligence:
All claims of the customer to the compensation of damage, irrespective of the legal ground, which are not based on our gross fault (intention/gross negligence) are excluded unless the damage is based on the existence of a defect or the violation of material contractual duties which have to be satisfied in order to allow for the proper performance of the contract (so-called "cardinal duties").
(4) Limitation of our liability in case of not typically foreseeable damage:
Unless they are already excluded according to the limitation of our liability for damage caused by defects and consequential damage (section 2) and for ordinary/simple negligence (section 3), the amount of all claims of the customer to the compensation of damage, irrespective of the legal ground, which are not based on our gross fault (intention/gross negligence) shall be limited to the compensation of the damage that would have been foreseeable upon contract conclusion, considering the circumstances that we have known or should have known, as possible consequence of the violation of duty and/or contract violation (typically foreseeable damage).
(5) Limitation of our liability in case of default:
If due to default, the customer asserts a claim to compensation against us due to violation of duty or instead of performance and if this claim is not based on gross fault (intention/gross negligence), this claim to compensation shall - unless it is already excluded according to the liability limitations in our favour regarding damage caused by defects and consequential damage (section 2) and in case of ordinary/simple negligence (section 3) - in its amount be limited to a maximum of 100% of the price, exceeding the limitation of our liability to the typically foreseeable damage (section 4). A default is at hand if in the processing of the contractual relationship obstacles occur making the proper satisfaction of contractual duties difficult or even impossible or if one contractual party is damaged by the other one.
(6) Limitation of our liability in case of damage caused by a delay:
The liability limitations in our favour specified above referring to damage caused by defects and consequential damage (section 2), in case of ordinary/simple negligence (section 3), not typically foreseeable damage (section 4) and default (section 5) shall also apply to claims of the customer against us to the compensation of damage caused by a delay unless they are based on gross fault (intention/gross negligence).
(7) Limitation of our liability for our vicarious agents:
Any liability for our vicarious agents (§ 278 BGB) shall be excluded, regardless of the legal ground, unless the vicarious agent violated contractual duties with gross fault (intention/gross negligence), which have to be satisfied in order to allow for the proper performance of the contract. Our liability for a vicarious agent shall in no case exceed our liability for own fault as it results considering the liability limitations specified above. According to § 278 BGB, vicarious agents are natural or legal persons who the debtor makes use of in order to satisfy their obligations.
(8) The preceding liability limitations (§ 9 section 1 to section 7) shall not apply to claims pursuant to Section 1 et sq. of the German Product Liability Law, nor to claims due to a maliciously concealed defect, nor to claims due to the acceptance of a quality warranty, nor to claims due to injury to the life or limb or health of the customer, his organs and his employees, nor to claims due to a hindrance of performance existing at the time of contract conclusion which was known to us at the time of contract conclusion or ignorance of which was within our control. The aforementioned arrangements shall not change the burden of proof to the disadvantage of the customer.
(9) When the carrier is determined by the customer, we shall not be liable for charges due to additional safety inspections or for time delays resulting from the requirements of Aviation Security Act and EU regulations (EC) no. 300/2008, (EC) no. 185/2010, (EU) no. 173/2012, (EC) no. 272/2009 as well as any other current national and international legal provisions. Customer shall indemnify us on first demand from all costs and losses resulting from additional safety inspections and related time delays in this respect.
§ 10 Offset/assignment/right of retention
Offsets are excluded unless the counterclaim is undisputed, has been established as final and absolute or accepted by us. The customer shall only be entitled to assign claims against us to third parties with our written consent. The customer shall only be entitled to assert rights of retention based on counterclaims resulting from the same contractual relationship.
§ 11 Final provisions
(1) Our place of business shall be the only place of jurisdiction for all disputes arising out of and in connection with the legal relationship. The exclusive place of jurisdiction for actions against us by customers that have no general place of jurisdiction in the Federal Republic of Germany shall also be our place of business. For our actions against customers who have no general place of jurisdiction in the Federal Republic of Germany, our place of business shall also be an additional place of jurisdiction, apart from the statutory places of jurisdiction. Any arbitration agreements made between the parties take precedence.
(2) Only the laws of the Federal Republic of Germany apply with respect to the inclusion of these GT&Cs and all legal relationships arising from the contract and any possible secondary and/or consequential business involving the parties to the contract and their legal successors. Also this choice of law and the foregoing provisions on the place of jurisdiction are subject to the law of the Federal Republic of Germany. The application of the UN Law on the Sale of Goods (Convention of the United Nations dated 11 April 1980 relating to contracts on the international sale of goods) shall not be excluded by the foregoing choice of law.
(3) The place of performance shall be our place of business.
(4) If any clause of these GT&Cs is or becomes invalid, this shall not affect the validity of the agreement as a whole. The parties shall strive for replacing the clauses concerned by effective provisions coming closest to the desired commercial aim.
General Terms and Conditions of KOSME s.r.l. Last update: 21/10/2014