Terms of service

Terms of service
General Terms and Conditions of the
Elma Schmidbauer GmbH for the Elma Store
(Status: 01.10.2021)
I. Scope of the General Terms and Conditions
1. For all contracts concluded via our web shop between us, Elma Schmidbauer
GmbH, and the customer, the following General Terms and Conditions
(hereinafter: GTC) shall apply exclusively in the version valid at the time of the
order.
2. Individual agreements between the contracting parties take precedence over
these GTC. Any deviating terms and conditions of purchase of the customer
are expressly rejected.
3. These GTC apply only to persons who, when concluding the contract, act in
the exercise of their commercial or independent professional activity
(entrepreneurs) as well as to legal entities under public law or a special fund
under public law. They do not apply to natural persons who conclude the
contract for a purpose that cannot be attributed to their commercial or selfemployed professional activity (consumers).
II. Conclusion of contract
1. The presentation and advertising of goods in our web shop do not constitute a
binding offer to conclude a purchase contract.
2. The customer can select products from our range and collect them in a virtual
shopping cart by clicking the “Add to cart” button. By sending an order via the
web shop by clicking the button “Order subject to payment”, the customer
places a legally binding order.
3. Before submitting the order, the customer can change and view the data at
any time. However, the order can only be placed and transmitted if the
customer has accepted these contractual conditions by clicking on the button
“Accept GTC” and has thereby included them in his order. The contract shall
be concluded in English.
4. The customer is bound to the order until the expiry of the working day
following the submission of the order.
5. We will confirm receipt of the customer’s order immediately by e-mail. Such an
e-mail does not constitute a binding acceptance of the order unless, in addition
to the confirmation of receipt, the acceptance is declared at the same time.
6. A contract is only concluded when we accept the order by means of an
express declaration of acceptance or by delivering the ordered goods. The
terms of the contract shall be stored by us in compliance with data protection.
7. If the delivery of the ordered goods is not possible, for example because the
corresponding goods are not in stock, we shall refrain from issuing a
declaration of acceptance. In this case, no contract shall be concluded. We will
inform the customer of this immediately and refund any consideration already
received without delay.
8. Errors, typing, printing or calculation errors in our non-binding offer as well as
in our catalogues and brochures may be corrected by us without us being
liable for damages resulting from these errors. Unless otherwise agreed, the
documents belonging to the non-binding offer, such as illustrations, drawings,
invoices, weights or dimensions, are only approximate. Such details, in
particular also those concerning the performance and usability of the products
supplied as well as DIN standards, shall only be deemed to be contractually
agreed if we expressly declare this to the customer.
III. Prices
1. All prices quoted in the web shop are net prices plus VAT. They apply in Euro
FCA (Incoterms 2020) ex our warehouse in 78224 Singen, Germany, or the
designated warehouse of our logistics partners plus packaging, freight and
shipping costs, unless otherwise agreed in writing. Additional costs for
expedited shipping will be invoiced separately.
2. The shipping costs are indicated in the price details in the web shop. The price
including VAT and applicable shipping costs is also displayed in the order
mask before the customer confirms the order.
3. If we fulfil the order in accordance with § 3 para. 1 by partial deliveries, the
customer shall only incur shipping costs for the first partial delivery. If the
partial deliveries are made at the request of the customer, shipping costs shall
be charged for each partial delivery.
IV. Terms of payment
1. The customer may choose to transfer the purchase price and the shipping
costs to our account stated in the web shop, to grant us a direct debit
authorisation or to pay by PayPal or credit card. A direct debit authorisation
granted shall also apply to further orders until revoked.
2. Payments shall be due 14 days net after the date of invoice; thereafter,
interest on arrears shall be payable at a rate of 9 percentage points above the
base rate of the European Central Bank until the occurrence of default.
3. Offsetting or retention of payments is only permitted for claims arising from the
same contractual relationship or for recognised or legally established claims of
the customer.
4. In the case of orders from customers with their place of residence or business
abroad or in the case of justified indications of a risk of non-payment, we
reserve the right to deliver only after receipt of the purchase price plus
shipping costs (reservation of advance payment). If we make use of the
reservation of advance payment, we will inform the customer immediately. In
this case, the delivery period shall commence upon payment of the purchase
price and the shipping costs.
5. If, after conclusion of the contract, it becomes apparent that our claim for
payment is jeopardised by our customer’s inability to pay, we shall be entitled
to refuse our performance or actions preparatory to performance. The right to
refuse performance shall not apply if payment is made or security is provided
for the payment. We may set the customer a reasonable deadline for
payment/providing security. After unsuccessful expiry of the deadline, we are
entitled to withdraw from the contract.
6. We are entitled to assign our claims against the customer.
V. Delivery periods, deliveries and delay
1. The delivery period for deliveries within the Federal Republic of Germany is
approximately five (5) working days, unless otherwise agreed. It shall
commence - subject to the provision in para. 3 - upon conclusion of the
contract.
2. The following delivery restrictions apply: We only deliver to customers who
have their habitual residence (billing address) in the European Union and can
provide a delivery address in the European Union.
3. An execution or delivery deadline shall be extended - even within a delay -
appropriately in the event of force majeure (e.g. natural disasters, war,
uprising, strike, epidemics, pandemics) and in the event of all unforeseen
obstacles occurring after conclusion of the contract for which we are not
responsible, insofar as such obstacles impede or prevent the performance of
our service. This shall also apply if these circumstances occur at our suppliers,
subcontractors, carriers or subcontractors. We shall inform the customer
immediately of the beginning and end of such obstacles.
4. If the impediment lasts longer than three months or it is determined that it will
last longer than three months, both the customer and we may withdraw from
the contract. In the event of withdrawal due to such hindrances, claims for
damages are excluded. Any services already rendered by the customer shall
be returned unless the customer was responsible for a delay or postponement
of the delivery schedule which enabled or caused the aforementioned delay or
hindrance; in this case, the following paragraph 4 shall apply accordingly.
5. We are entitled to make partial deliveries insofar as the customer has an
objective interest in the partial delivery in accordance with the purpose of the
contract and the customer does not incur any significant additional expense as
a result.
6. The customer shall ensure the possibility of undisturbed delivery. Otherwise,
this must be notified to us at least 10 days before the agreed or announced
delivery date. If deliveries have already been initiated by us at this time and
are returned to us due to circumstances which the customer is responsible for,
we shall be entitled to invoice our additional expenses separately. The agreed
delivery period shall be extended accordingly. This shall also apply in the
event of changes or new orders by the customer which are placed after
conclusion of the contract.
7. If the customer is in default with the acceptance of the goods or with the
payment of the purchase price, we may withdraw from the contract and/or
claim damages instead of performance after the fruitless expiry of a
reasonable grace period set by us. When asserting the claim for damages
instead of performance, we may demand 20% of the net order value as lumpsum damages; the parties are at liberty to prove higher or lower actual
damages. In addition, we shall be entitled to charge the expenses incurred, in
particular storage costs, if the customer is in default of acceptance. In the
event of storage on our own premises, we shall charge storage costs
customary at the place of storage.
8. If we are in default with the delivery due to simple negligence, our liability for
damages due to the delay in delivery shall be limited to 0.5% of the net order
value for each full week of the delay, but not more than 5% of the net order
value. If the customer claims damages instead of delivery in the
aforementioned cases, this claim for damages shall be limited to 10% of the
net order value. The limitations of liability according to the above sentences 1
and 2 shall not apply in the event of a delay due to intent or gross negligence,
nor in the event of injury to life, limb or health, nor in the event of a transaction
for delivery by a fixed date, i.e. in the event of a transaction in which the
transaction is to stand or fall with the observance of the fixed time of
performance.
VI. Transfer of risk
1. The transfer of risk shall be governed by FCA (Incoterms 2020) unless
otherwise agreed in writing.
2. It is the customer’s responsibility to insure the goods against insurable risks, in
particular against theft, breakage, fire, water, transport or other damage, at his
own expense from the transfer of risk.
VII. Retention of title
1. We reserve title to the goods until complete fulfilment of all - including future -
claims (including all ancillary claims such as e.g. financing costs, interest)
arising from the business relationship with the customer. If a current account
agreement has been agreed with the customer, the retention of title shall exist
until full settlement of the recognised current account balance. Insofar as
payment of the claim has been agreed with the customer on the basis of the
cheque bill of exchange procedure, the retention of title shall also extend to
the redemption of the bill of exchange issued by us by the customer and shall
not expire by crediting the cheque received by us.
2. The customer is obliged to treat the goods subject to retention of title with
care, in particular to insure them at his own expense against damage by fire,
water and theft at their replacement value and to inform us immediately in the
event of seizure, confiscation, damage and/or loss; a breach of this obligation
gives us the right to withdraw from the contract. The customer shall bear all
costs which have to be incurred in particular within the framework of a thirdparty action in the event of the lifting of an attachment and, if applicable, in the
event of a replacement of the delivery items, insofar as they cannot be
confiscated by third parties.
3. In the event of seizure, confiscation, damage and/or loss of the delivered
goods, the customer shall inform us immediately; a breach of this obligation as
well as other conduct of the customer in breach of contract, in particular nonpayment of the purchase price due, shall give us the right to withdraw from the
contract. The customer shall bear all costs that had to be incurred, in particular
in the context of a third-party action, to successfully lift an attachment and, if
applicable, to successfully recover the delivered items, insofar as they cannot
be confiscated from third parties.
4. If we have effectively withdrawn from the contract, we shall be entitled to take
back the goods subject to retention of title if the taking back has been
threatened with a reasonable period of time. Our statutory rights and
obligations following a withdrawal from the contract shall otherwise remain
unaffected.
5. The costs arising from the exercise of the right of return, in particular for
transport and storage, shall be borne by the customer.
6. The customer hereby assigns to us the purchase price, remuneration for work
or other claims arising from the resale or for any other legal reason (e.g. in the
event of an insurance claim, in the event of tortious acts or due to loss of
ownership by combining the delivery item with real estate) with regard to the
reserved goods, including the recognised balance from a current account
agreement in the amount of the invoice value of the reserved goods; we
accept the assignment. The assignment of claims in accordance with sentence
1 serves to secure all claims - including future claims - arising from the
business relationship with the customer.
7. The customer is revocably entitled to collect claims from the resale of the
goods for us in his own name. This collection authorisation can only be
revoked if the customer does not properly fulfil his payment obligations. At our
request, the customer shall in such a case provide the information on the
assigned claims required for collection, provide the corresponding documents
and notify the debtor of the assignment.
8. If the realisable value of the securities granted to us in accordance with the
aforementioned provisions exceeds our claims against the customer not only
temporarily by more than 10%, we shall release securities to this extent at our
own discretion at the customer’s request. This cover limit of 110% shall be
increased by this value added tax amount insofar as we are charged with
value added tax on the realisation of the collateral, which arises from a
delivery by the customer to us subject to value added tax. The customer is
also entitled to demand the release of collateral if the estimated value of the
goods assigned as collateral is more than 150% of the claims to be secured.
The selection of the securities to be released is incumbent upon us.
9. In the event of cessation of payments, application for or opening of insolvency
proceedings against the customer, the customer’s right to resell and to use the
reserved goods as well as the authorisation to collect assigned claims shall
expire. The statutory rights of an - also provisional - insolvency administrator
shall remain unaffected.
VIII. Notice of defects, rights in the event of material defects
1. The customer shall notify defects of any kind - with the exception of hidden
defects - in writing immediately after delivery to the customer, at the latest after
the expiry of seven working days (Saturday does not count as a working day);
otherwise the goods shall be deemed to have been approved. Hidden defects
must be notified in writing (e.g. in writing or by e-mail) immediately after
discovery, at the latest after the expiry of seven working days (Saturday does
not count as a working day); otherwise the goods shall be deemed to have
been approved also with regard to these hidden defects.
2. By negotiating a complaint, we shall in no case waive the objection of late,
insufficient or unfounded notice of defects.
3. The customer is obliged to give us the opportunity to ascertain the defect
complained of on the spot. In the event of transport damage or breakage, the
goods must be left in the condition in which they were when the damage was
detected.If a defect cannot be detected after the customer’s complaint, the
customer shall reimburse us for the costs incurred in connection with the
inspection of the goods.
4. Insofar as the goods have a defect, we may, at our discretion, either remedy
the defect (rectification) or deliver a defect-free item (replacement) as
subsequent performance, unless otherwise agreed between the parties or a
special guarantee has been granted by us (para. 7 below). If we are not
prepared or not in a position to rectify the defect/replacement delivery, in
particular if this is delayed beyond reasonable periods for reasons for which
we are responsible, or if the rectification/replacement delivery fails in any other
way, the customer shall be entitled, at his discretion, to withdraw from the
contract or to reduce the consideration owed, provided that further attempts at
rectification/replacement are unreasonable for him. The customer may only
withdraw from the contract due to an insignificant defect with our consent.
5. Material defect rights can only arise if the goods have a material defect at the
time of transfer of risk. No material defect rights shall arise in the event of
unsuitable or improper use, faulty assembly or commissioning by the customer
or third parties commissioned by the customer, natural wear and tear, faulty or
negligent handling or maintenance in accordance with the documentation,
defective construction work, unsuitable building ground, chemical,
electrochemical or electrical influences, provided that these are not attributable
to fault on our part, as well as in cases of force majeure.
6. We shall only be liable for damages due to defective goods within the limits
specified in Clause. IX.
7. Guarantee agreements apply independently of the provisions of these GTC.
IX. Liability
1. We shall be liable for damages in cases of intent or gross negligence by us,
our legal representative or our vicarious agent, in the event of the assumption
of a guarantee, in accordance with the provisions of the Product Liability Act
and in the event of injury to life, limb and health for which we or our legal
representatives or vicarious agents are responsible.
2. If we or our legal representatives or vicarious agents violate an essential
contractual obligation with simple negligence, i.e. an obligation the fulfilment of
which makes the proper execution of the contract possible in the first place
and on the observance of which the contractual partner may regularly rely, our
obligation to pay compensation shall be limited to the foreseeable damage
typical for the contract. The limitation of liability in the event of delays in
delivery in accordance with Clause A. III.7. remains unaffected by this.
3. In all other cases of liability, claims for damages due to the breach of an
obligation arising from the contractual obligation as well as due to tort are
excluded, so that in this respect we are also not liable for consequential
damages, additional expenses, lost profit or other financial losses of the
customer.
4. Insofar as our liability is excluded or limited on the basis of the above
provisions, this shall also apply to the personal liability of our employees,
workers, staff, representatives and other vicarious agents.
5. The terms “damage” or “claims for damages” in these GTC also include claims
for reimbursement of futile expenses.
X. Limitation
1. In the case of supplier recourse in the supply chain of a consumer goods
purchase, in the case of statutory strict liability, in particular under the Product
Liability Act and in the case of warranty liability, the statutory limitation period
shall apply.
2. In the event of damage resulting from injury to life, limb or health due to a
negligent breach of duty by us or an intentional or negligent breach of duty by
our legal representative or vicarious agent, in the event of other damage,
which are based on an intentional or grossly negligent breach of duty by us or
on an intentional or grossly negligent breach of duty by our legal
representative or vicarious agent, as well as in the case of damages which are
based on an intentional or negligent breach of material contractual obligations
under the respective contract by us or our legal representative or vicarious
agent, the statutory limitation period shall also apply.
3. In all other cases, the limitation period shall be one year.
XI. Software
Insofar as software is included in the scope of delivery, the respective licence
conditions for the use of the software shall apply.
XII. Copyright
All images, texts and videos published in this web shop are protected by copyright.
Use of these works is not permitted without our express consent or that of the
respective copyright holder.
XIII. Data protection
The Customer agrees that we may store, use or process personal data in accordance
with the European Data Protection Regulation to the extent necessary for the
performance of the contract.
XIV. Labelling
1. Unless expressly agreed, the goods and the associated documentation are
labelled or written in German and the goods comply with the statutory
requirements applicable to Germany with regard to labelling and approval.
2. The customer shall be exclusively responsible for fulfilling any further
requirements of other legal systems outside Germany with regard to labelling
or approval, unless the parties have agreed otherwise.
XV. Final Provisions/Court of Jurisdiction
1. Unless otherwise agreed, the place of payment and performance for all
obligations is 78224 Singen, Germany.
2. The law of the Federal Republic of Germany shall apply to contracts between
us and the customer to the exclusion of the UN Convention on Contracts for
the International Sale of Goods. The statutory provisions on the restriction of
the choice of law and on the applicability of mandatory provisions, in particular
of the state in which the customer has his habitual residence as a consumer,
shall remain unaffected.
3. Insofar as the customer is a merchant within the meaning of the German
Commercial Code, a legal entity under public law or a special fund under
public law, the place of jurisdiction for all rights and obligations of the parties to
the contract arising from transactions of any kind - including disputes over bills
of exchange and cheques - shall be 78224 Singen, Germany. The same shall
apply if the customer does not have a general place of jurisdiction in Germany,
moves his place of residence or habitual abode out of Germany after
conclusion of the contract or his place of residence or habitual abode is not
known at the time the action is brought. However, we are also entitled to sue
the customer at his general or special place of jurisdiction.
4. Should provisions of these GTC be or become invalid in whole or in part, this
shall not affect the validity of the remaining provisions. The contracting parties
undertake to replace the invalid provision with a valid provision that comes as
close as possible to the purpose intended by the invalid provision.
01.10.2021
Elma Schmidbauer GmbH