Item 1 Scope
The following General Terms and Conditions, in the version valid at time the order was placed, apply exclusively to all orders. These conditions apply exclusively to standard goods which are not manufactured based on customer-specific requirements. The conditions are an essential component of our offer and any delivery contracts concluded and remain an integral part of the contract for all future orders by our customers until new Terms and Conditions are added. We only commit to differing general terms, conditions and purchasing terms if we have expressly agreed to them in writing. Our offers are solely intended for companies, enterprises and public authorities, or comparable persons and institutions.
Item 2 Conclusion of Contract/Transfer of Rights and Obligations
- The customer (hereinafter also referred to as „Buyer“) makes us (hereinafter also referred to as „DEGARDO“) an offer to conclude a contract by placing an order by telephone, in writing or in electronic form. The contract is considered to be concluded if DEGARDO GmbH confirms acceptance of the order in writing within a period of five days, or the delivery is performed. An order made by the Buyer is binding. A telephone order placed by the Buyer is binding, even if it is not subsequently confirmed by letter, E-mail or fax. DEGARDO GmbH is entitled to withdraw if there are written, printing or calculation errors.
- DEGARDO GmbH does not accept any procurement risk. They are entitled to terminate the contract if, despite previous conclusion of a corresponding purchase contract on their part, they do not receive the delivery item; the responsibility of DEGARDO GmbH for deliberate acts and gross negligence remains unaffected in accordance with the provisions of Item 6 Para. 2. DEGARDO GmbH will promptly inform the Buyer if the delivery items are not available in a timely manner and, if a withdrawal is requested, exercise the right of withdrawal immediately; in the case of a withdrawal, DEGARDO GmbH will reimburse the Buyer any payments made without delay.
- Product descriptions and declarations of DEGARDO GmbH (e.g. performance specifications, reference to technical standards) do not constitute acceptance of a guarantee. If there is any doubt, only expressly written declarations from DEGARDO GmbH concerning the assumption of a guarantee shall apply. DEGARDO GmbH reserves the right to carry out design modifications at any time as long as they do not decrease value.
- Separate agreements beyond the information given in the catalogue are only effective made in written form.
- The Buyer is obliged to accept the shipment. If receipt of the delivery is definitively refused in earnest, then DEGARDO GmbH has the right to withdraw from the contract with written explanation and demand compensation for damages due to non-fulfilment.
- Unless otherwise agreed, delivery is made from storage to the address specified by the Buyer. Information regarding delivery deadlines is non-binding. DEGARDO GmbH will promptly inform the Buyer of any expected changes to the delivery deadline.
Item 3 Prices/Costs of Shipment
- The prices that are valid on the order date shall apply. Previous price quotations cease to be valid upon publication of a new price list. The listed prices are without discounts and other deductions, and do not include VAT at the statutory rate at the time of order confirmation.
- The prices are delivered „carriage paid“ within Germany, without additional costs for packaging and/or shipping, unless stated otherwise in the catalogue or price list or the delivery is a direct delivery from DEGARDO GmbH to the purchaser’s customer the (a “drop shipment”). For this type of delivery, which is not delivered to the warehouse address of the purchaser, DEGARDO GmbH reserves the right to invoice an additional flat-rate fee for expenses of at least 10% of the total value of the goods.
- For orders with a total value of goods under €1,200, there is an additional pro rata lump sum cost of €49.
Item 4 Payment Conditions
Invoices from DEGARDO GmbH are to be paid net within 30 days of the invoice date.
Item 5 Retention of Title
- The delivered items remain the property of DEGARDO GmbH
a) until fulfilment of all claims against the Buyer which arise from the business relationship, insofar as the Buyer is a natural person who concludes the purchase agreement for the items for purposes which cannot be attributed to commercial activities nor to the person‘s independent professional occupation;
b) until fulfilment of all claims against the Buyer which arise from the business relationship, and also until fulfilment of all claims which DEGARDO GmbH has from the ongoing business relationship with the Buyer, if the Buyer is a natural or legal person, or a legally responsible joint partnership who is exercising their commercial or independent professional occupation when concluding the purchase contract. DEGARDO GmbH is obliged to waive the retention of title at the Buyer’s request if the Buyer has fulfilled all claims relating to the purchase item, and adequate security exists for other claims from the current business relationship.
- The retention of title will remain in effect if individual claims of DEGARDO GmbH are incorporated into a running account and this balance is determined and acknowledged.
- During the retention of title period, the Buyer is permitted to use the goods, insofar as they meet their obligations for the retention of title in accordance with the following regulations in this section, and do not find themselves in default of payment in accordance with Item 4 of these Terms and Conditions. If the Buyer defaults on their payments or fails to fulfil their obligations arising from the title retention, then DEGARDO GmbH may reclaim the purchase item from the Buyer and, after written notice and an appropriate deadline has been given, can salvage the value of the goods to the maximum extent possible by private sale and credit the proceeds against the purchase price. The seizure does not constitute a withdrawal from the contract.
- For the duration of the title retention, the delivered items may only be sold, pledged, assigned as collateral, rented or undergo other changes which compromise the security of the purchased goods if this action has the prior written permission of DEGARDO GmbH.
- In the event of third party possession, especially in case of a seizure of the purchased item or exercise of business rights of lien, the Buyer shall immediately inform DEGARDO GmbH in writing and promptly inform the third party of the retention of title by DEGARDO GmbH.
- DEGARDO GmbH may withdraw from the purchase contract in whole or in part upon prior written notice if the Buyer becomes unable to pay, has excessive debts, ceases to make payments or files for insolvency. The right to withdraw must be exercised before the insolvency proceedings are initiated. The Buyer must immediately inform DEGARDO GmbH if they become unable to pay, have excessive debts or will cease payments. If the Buyer fails to communicate this information, then they will be obliged to pay DEGARDO GmbH a lump sum payment of 5% of the goods’ value. DEGARDO GmbH may also prohibit the resale, processing or removal of the retained products. Regulations of insolvency ordnances remain unaffected.
Item 6 Liability
- The term of liability for material defects with the object of purchase is one year as of delivery.
- DEGARDO GmbH shall assume liability in accordance with the statutory regulations in cases of deliberate acts or gross negligence by a representative or vicarious agent. In all other cases, DEGARDO GmbH is only liable in accordance with the German Product Liability Act (Produkthaftungsgesetz) or in cases of harm to life, limb or health, or due to culpable breach of contractual obligations. However, claims for damages due to violation of material contractual obligations are limited to typical and foreseeable damages. The liability for damages to the customer‘s assets caused by the delivery item, e.g. damage to other items, is entirely excluded.
- The provisions of the previous Paragraph 2 extend to damage compensation in addition to performance as well as damage compensation in place of performance, regardless of their legal grounds, in particular on account of defects, breach of duties under the contractual obligations or unauthorized actions. This also applies to claims made for compensation of wasted expenditure.
- For properly submitted and legally justified notifications of defects, DEGARDO GmbH will provide replacement delivery or repair. If there is no supplementary performance, or DEGARDO GmbH is unable to carry it out, then the Buyer will be entitled to withdraw from the contract or demand a reduction in purchase price.
- For products which are marked with a „Degardo Guarantee Logo,“ the warranty period is extended to two years or longer if the logo mentions a longer warranty period. Providing the product was used within the scope of usual use, DEGARDO GmbH guarantees the functionality of the product during the warranty period. Not included in the extended warranty are moving parts (such as wheels, springs, and shafts), wearing parts and electrical components. If the product requires regular maintenance then the warranty extension with the „Degardo Guarantee“ is only valid if the maintenance has been carried out at regular intervals.
- In case of delayed delivery, the liability of DEGARDO GmbH is limited to a flat-rate compensation for delay not exceeding 5% of the net delivery value, unless the delayed delivery is due to deliberate acts or gross negligence.
Item 7 Right of Return
- The Buyer has the right to revoke a concluded contract within 30 days of delivery of the goods without having to state any reasons. The goods are to be sent back to DEGARDO GmbH at the latest 10 days after receipt of the notice of withdrawal. The Buyer assumes the costs of the return shipment and the risk of transportation.DEGARDO GmbH shall reimburse the Buyer the purchase price within 14 days of the receipt of the returned goods by DEGARDO GmbH, less a processing fee of 20% of the total value of goods or at least €49. Withdrawal and returns are only possible if there are no signs of wear on the goods and they are in their original packaging.
- This right of return does not apply to special purchases beyond the regular product range of DEGARDO GmbH, special-order production (such as visual or technical customisation, special colours, products with appliqués or special sizes), any type of custom-made products or to deliveries with special prices (e.g. if a volume discount was applied)
Item 8 Jurisdiction/Place of Fulfilment/Contract Interpretation/Applicable Law
- The place of fulfilment is the DEGARDO GmbH headquarters.
- The exclusive place of jurisdiction for all current and future claims arising from the business relationship with commercial agents, including cheques, is the headquarters of DEGARDO GmbH.
- The same place ofjurisdiction applies if the Buyer does not have a place of jurisdiction in Germany or has transferred their place of residence or habitual abode to a country other than Germany after the contract has been concluded, or if their residence or habitual abode is unknown when the legal action is filed.
- If individual provisions of this agreement should be or become completely or partially ineffective, then this does not affect the validity of the remaining provisions. The same applies if any loopholes are found in this agreement. The invalid provision(s) or loophole(s) shall be replaced by an appropriate provision that, as far as is legally possible, comes as close as possible to what the parties concluding the contract wanted or would have wanted according to the meaning and purpose of the contract, had they considered the provision in question when concluding the contract. Should the invalidity of a provision have arisen from a specific figure given therein with regard to performance or time (deadline or date), then the nearest legally permissible figure shall replace the invalid one. The contractual partners are obliged to make the required changes by way of a formal amendment to the wording of the contract. The statutory regulations of the Civil Code (BGB) and German Commercial Code (HGB) also apply.
- The law of the Federal Republic of Germany shall apply.
Item 9 Data Storage
The data of the Buyer are stored in the EDP system of DEGARDO GmbH. The data remain exclusively in the DEGARDO GmbH business unit and its subsidiary DENIOS AG for administrative and logistical processes.