Terms of Service
1.1 All present or future business transactions, deliveries and services of any kind to Delsana GmbH & Co. KG (hereinafter referred to as “Delsana”, “we”, “us” or “our”) are exclusively based on these General Terms and Conditions (Hereinafter referred to as “Conditions” or “Terms of Delivery”). The terms of business of our customers or third parties are hereby contradicted; they shall not apply if we have not expressly objected to them in the individual case.
1.2 These General Terms and Conditions shall apply only to contractors within the meaning of § 14 BGB.
2.1 Our offers are free of charge, samples and samples are non-binding. Our offers are valid from the place named by us on which the goods are made available. Relevant for the object of the order and binding for both parties is our respective written order confirmation, to which no. 12.4 of these Conditions.
2.2 Any conclusion of contract and delivery shall be subject to the express proviso that we are supplied by our suppliers correctly and on time, insofar as we are not responsible for any deliveries which differ from our order confirmation. In the event of a risk of non-delivery or non-timely delivery by our suppliers, we are entitled to carry out comparable cover transactions.
3.1 Unless expressly otherwise agreed in writing, all our prices are exclusive of packaging and transport and plus statutory value-added tax at the applicable rate.
3.2 Cash discount payments require our written consent. Payments by the customer are made in EURO. If we accept payment in other currency, the conversion rate applicable at the time of the offer preparation shall be decisive.
3.3 Our payment claims are due within 7 days after the delivery of the goods. Thereafter, the customer is in default without requiring a further reminder. During the default, a 3% debt owed to us is higher than the base rate pursuant to Art. § 247 BGB to interest rate; We reserve the right to assert further damages.
3.4 We shall be entitled to reasonable price changes due to changes in wages, materials and distribution costs for such deliveries made 4 months or later after conclusion of the contract.
3.5 If we accept payments by bill of exchange, the acceptance of the bill will be effected on account of performance. The same applies to payments by check. Check and exchange costs, including protest costs, shall be borne by the customer.
4. Delivery, transfer of risk
4.1 Except as otherwise expressly and in writing, the following applies: Deadlines announced by us for the delivery of the goods or delivery periods are only indicative of the expected delivery date and are non-binding. Binding delivery and delivery periods begin at the earliest with the receipt of our order confirmation by the customer, but not before all details of the execution of the order have been clarified and all other conditions to be fulfilled by the customer for the execution of the contract or delivery as well as the necessary information.
4.2 The goods are delivered at the place of handover (see point 2.1). With the provision and reporting of the readiness to pick up, the risk of the accidental loss or accidental deterioration of the goods and the risk of transport are transferred to the customer. The customer then also assumes all responsibility for the goods. If the goods are not picked up in time, we are entitled to store the goods at the expense of the customer also with third parties. In this case as well, the transfer of risk occurs with the provision of the goods to the customer and the notification of the readiness to pick up.
4.3 We are obligated to deliver the goods, premature and partial deliveries are permitted. The dispatch will take place from our pick-up point, on behalf of the customer and in a manner which seems favorable to us at our discretion, but without guarantee for the safest, most cost-effective and fastest transport. We are entitled but not obliged to insure the goods against theft, breakage, fire, water and other damages / transport damage at the expense of the customer insofar as the customer has not taken out an insurance that takes these risks into account and has informed us in writing. The risk of accidental loss or accidental deterioration of the goods and the risk of transport shall be transferred to the customer upon delivery of the goods to the natural or legal person (eg freight carrier) responsible for execution of the dispatch, but at the latest upon leaving the plant / warehouse. This applies irrespective of whether the goods are dispatched from the place of fulfillment or from the work of our suppliers or who bears the freight costs. The customer then also assumes all responsibility for the goods.
4.4 If the customer is in default of acceptance or if he culpably infringes any other cooperation obligations, we are entitled to demand compensation for the damage incurred, including any extra charges. We reserve the right to make further claims. If the above conditions are fulfilled, the risk of accidental loss or accidental deterioration of the purchased goods is transferred to the customer at the time at which the customer is in arrears with the delay of acceptance or in the event of a violation of his cooperation obligations. The customer then also assumes all responsibility for the goods.
5. Delay of delivery
5.1 In the event of strikes, power failures, traffic restrictions, floods, fire, theft, blockades, pestilence, official delivery delays or official prohibition of reference to products which are not our responsibility, we will extend a binding delivery period / delivery period of the goods adequately by the time Of the delay plus an appropriate further organizational time. The same applies if corresponding events occur with our sub-suppliers.
5.2 The customer can only withdraw from the contract in the event of binding delivery / performance periods taking into account the abovementioned extended delivery and performance periods, provided that the delivery and performance periods have been exceeded and a delivery / delivery has not been made by us despite a reasonable postponement. In this case, the customer is only entitled to assert a demonstrable direct default of default and also only if the delay is due to us due to gross negligence or intent. There is no further claim for damages on the part of the customer.
6. Heavy force
Force majeure such as natural catastrophes, unrest, strikes, lockouts and other unpredictable, unavoidable and serious events shall release both parties from their respective obligations for the duration of the disruption to the extent of their effect, provided that the performance disturbances are attributable to these circumstances. In this case, we are entitled to rescind all or part of the contract due to the unfulfilled portion of the contract.
7. Warranty, investigation and notification obligations
7.1 Warranty rights of the customer presuppose that the customer has properly complied with his inspection and complaint obligations pursuant to § 377 HGB. In the event of complaints, hidden defects are to be claimed immediately after their discovery, in accordance with § 377 HGB (German Commercial Code) immediately, but at the latest within 5 calendar days after receipt of the goods, otherwise the goods shall be deemed approved. Transport damage must be documented and communicated as soon as possible after receipt of the goods. Any notification of defects must be made in writing, at least by fax.
7.2 The warranty covers only defects which occur when the goods are used as intended. Only the expressly confirmed description of the goods is valid as condition of the goods. Any material or usage claims, public statements, promotions or advertisements which are expressly confirmed by us in writing or by us or the manufacturer or our or its suppliers do not constitute a contractual specification or an indication of the usability of the goods.
7.3 Defects do not exist in the case of minor deviations from the agreed upon nature, insignificant impairment of usability, natural wear and tear, as well as damage resulting from the risk transfer due to faulty or negligent treatment, excessive stress, inappropriate use environment or due to special external influences The contract has not been provided or has not been communicated to us. In this respect, we also assume no guarantee that the delivered goods correspond to the special purposes of the customer or are harmless or usable in combination with other products of the customer.
7.4 Claims for defects shall become statute-barred 12 months after the delivery of the goods delivered by us to the customer or the delivery address deviating from the place of business or establishment specified by the customer. The above provision shall not apply insofar as the law stipulates longer deadlines pursuant to § 479 para. 1 BGB (Restraint Claim).
7.5 Unless expressly stated or confirmed by us in writing, our statements against the customer are not guarantees in the case (in particular within the meaning of § 443 BGB). In the case of our legally effective acceptance of a guarantee, in particular for the condition of the goods as defined in §§ 444, 639 BGB or in the case of malicious concealment of a defect, the rights of the customer shall be governed solely by statutory provisions.
7.6 In the case of defects in the goods, we shall, at our discretion, make a warranty by repair or replacement delivery. We shall always be given the opportunity to provide supplementary performance within a reasonable period. If the supplementary performance fails, the customer can – without prejudice to any statutory claims for damages – fundamentally, at his discretion, demand a reduction of the remuneration (reduction) or the rescission of the contract (withdrawal). The customer can not claim compensation for futile expenses. If the customer reasonably withdraws from the contract after failed supplementary performance, he is not entitled to compensation for the defect. If the customer makes claims for damages after failed supplementary performance, the goods remain with the customer, if this is reasonable. The damages are limited to the difference between the purchase price and the value of the defective item. This limitation does not apply if we have caused the infringement intentionally or through gross negligence.
7.7 Claims of the customer due to the expenses necessary for the purpose of supplementary performance, in particular transport, travel, work and material costs shall be excluded insofar as the expenses increase because our delivered goods have been moved to a different location, , The shipment corresponds to its intended use.
7.8 There is a consensus with the customer that in the respective purchase price for the goods there is a discount to compensate for possible backlash claims of the customer within the meaning of § 478 para. IV sentence 1 BGB. Accordingly, all recourse claims of the customer according to § 478 BGB – with the exception of possible claims for damages within the meaning of § 478 para. IV sentence 2 BGB – are excluded. Any customer’s rejection claims against us shall exist in any case only insofar as the customer has not entered into any agreements with his customer beyond the legally compulsory claims for defects. For the extent of the customer’s rejection requirement, 7.7 correspondingly.
7.9 If the verification of a defect indication shows that there is no warranty, we can charge the cost of the inspection at our usual cost rates to the customer.
7.10 Any further or other than the one described here in para. 7 regulated claims of the customer against us and our fulfillment claims due to defects are excluded.
8. Exclusion and limitation of liability
8.1 Claims for damages on the part of the customer due to a defect shall lapse within 12 months after delivery of the goods. This does not apply if gross negligence is foreseeable to us, as well as in the case of physical and health damage which we are responsible for, or in the event of the loss of the customer’s life, his vicarious agents or third parties.
8.2 If we violate our performance aids as well as third parties commissioned by us, negligently insignificant contractual obligations, we are not liable for this. The above liability privilege shall not apply in the event of a culpable breach of obligations for which we have made guarantees under § 444, 639 BGB (German Civil Code).
8.3 Liability for defects due to improper handling or storage of the goods by the customer or by third parties commissioned by the customer shall be excluded.
8.4 The foregoing exclusion of liability does not relate to claims of the customer arising from product liability or other liability standards which can not be deducted individually. Furthermore, the limitation of liability does not apply to our own body and health damage or loss of the life of the customer or its vicarious agents and other third parties.
9. Offsetting, right of retention and prohibition of assignment
The customer has the right to set-off against counterclaims only if they are undisputed, recognized by us or legally established. The same applies to the assertion of retention rights insofar as the claims of the customer are based on the same contractual relationship. The assignment of the rights of the customer requires our express consent.
10. Reservation of title
10.1 We retain title to all delivered goods until full payment of all claims, including conditional claims arising from the business relationship with our customer. This also applies to all future deliveries, even if we do not always expressly refer to them. This also applies if individual or all receivables are included in a current account (current account) and the balance is drawn. In the case of payment with a bill of exchange, the retention of title applies until the bill has been accepted without reservation. We are entitled to take back the goods if the customer behaves in breach of contract.
10.2 The customer is obligated, as long as the property has not yet passed on to him, to treat the purchased item with care. As long as the property has not yet passed, the customer has to notify us immediately in writing if the delivered item is seized or other interferences of third parties. Insofar as the third party is not able to reimburse us for judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
10.3 The customer is entitled to resell the reserved goods in the normal course of business, as long as he has not been in default with a claim from the business relationship. The license for resale is subject to the condition that the customer is only allowed to use this item. 10 if the goods are not immediately paid by the third party. Other disposals, in particular pledging or safeguarding, are not permitted. The customer assigns the claims against customers from the resale of the reserved goods to us in the amount of the agreed invoice amount (including value-added tax). The customer remains empowered to collect the claim even after the assignment. Our power to collect the claim ourselves remains unaffected. However, we will not collect the receivables as long as the customer complies with his payment obligations from the revenue collected, is not in arrears with payment and, in particular, no application for opening insolvency proceedings is filed or payment is settled.
10.4 We undertake to release the collateral which is due to us at the customer’s request insofar as the value of the collateral exceeds the claims to be secured by more than 20%. We are entitled to select the collateral to be released. In the case of seizures or other access by third parties to our goods, the customer has to inform the third party of our security rights, to characterize the goods in our possession as such and to notify us immediately without delay.
11. Registration / Place of Performance / Jurisdiction / Subordinate Terms
11.1 The law of the Federal Republic of Germany applies to the entire legal relationship between us and the customer. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as the “Agreement on the Limitation Period for International Sale of Goods” are excluded.11.2 Place of performance for all our services as well as for the customer’s duties to pay and inform Is our place of business.
11.3 Jurisdiction for all disputes arising from or in connection with the business relationship with the customer is our place of business. By way of derogation, we are also entitled to sue the customer at his general court of jurisdiction.
11.4 Should one or more provisions of our contract with the customer including these general terms and conditions be or become invalid or invalid, this shall not affect the validity of the remaining provisions. Such a void or ineffective provision shall be supplemented by a provision which comes as close as possible to the economic purpose as legally effective. The same applies to the completion of regulatory gaps.
11.5 Amendments and supplements to these General Terms and Conditions as well as to the contracts forming the basis of these terms shall be in writing. This also applies to changes to this font clause. Verbal ancillary agreements were not taken.
Delsana GmbH & Co. KG