General Terms and Conditions of Trade for catalogue goods and online shop
§ 1 Scope of application
The following General Terms and Conditions of Trade in the version valid at the date of order shall apply to all catalogue orders and orders via our online shop. These Terms and Conditions relate solely to standard goods not made to customers’ individual requirements. These Terms and Conditions are an integral part of our quote and the supply contracts concluded with us and shall also remain part of the contract for all our customers’ future orders until new terms and conditions of trade are incorporated. We shall be bound by different terms of trade and purchase only if we have given our agreement in that respect. These conditions apply to entrepreneur and consumer. The customer is a consumer as long as the purpose of the ordered deliveries and performances cannot be linked to a commercial activity or to an activity of an independent entity. Entrepreneur is every person or entity that acts in exercise of his or its trade, business or profession when entering into this agreement. The basis of contracts that take the form of contracts for work and services shall be our General Terms and Conditions of Trade for Custom Production, which are available on our website at www.denios.de.
§ 2 Conclusion of contract/assignment of rights and obligations
1. The customer (“Customer”) makes us (“DENIOS AG”) an offer to conclude a contract in the form of an order placed by telephone, in writing or electronically. The contract shall be deemed concluded if DENIOS AG has confirmed acceptance of the order in writing within five days or if the delivery has been carried out. An order placed by the Customer is binding. The Customer’s legal right of withdrawal according to § 7 shall remain unaffected thereby.
2. DENIOS AG does not assume any procurement risk. It shall be entitled to cancel the contract if it does not receive the delivery item despite having previously concluded a corresponding purchase contract. DENIOS AG’s liability for intent and gross negligence shall remain unaffected in accordance with Section 6 (2). DENIOS AG shall inform the Customer without delay about the delivery item not being available in time and, if it intends to cancel, shall without delay exercise the right of cancellation. In the event of cancellation DENIOS AG shall without delay refund the corresponding consideration to the Customer.
3. In case of doubt, product descriptions and declarations provided by DENIOS AG (e.g. specifications, reference to technical standards, etc.) shall not constitute a warranty. Only express written warranty declarations by DENIOS AG shall be authoritative in case of doubt. DENIOS AG reserves the right to make design changes at any time if they do not impair the value.
4. Separate agreements beyond the indications in the catalogue or online shop shall be effective only if set down in writing.
5. The Customer shall be obliged to accept the consignment. If acceptance of a consignment is seriously and definitely refused DENIOS AG shall be entitled to cancel the contract by written declaration and to demand damages for nonperformance.
6. Unless otherwise agreed, delivery shall be made ex warehouse to the delivery address
supplied by the Customer. Indicated delivery periods shall not be binding. DENIOS AG shall inform the Customer without delay about any likely change to the delivery period.
§ 3 Prices/shipping costs
1. The catalogue and online shop prices valid at the date of order shall apply. Previous prices shall cease to be valid when a new catalogue is published or if a change is made to the price marking in the online shop. Prices are quoted without discount and other reductions. VAT at the rate in force on the order acknowledgement date will be added to the prices.
2. Prices are for delivery within Germany free of charge to Customer‘s address with no additional charges for packaging and/or carriage unless otherwise stated in the catalogue or online shop.
§ 4 Terms of payment
1. DENIOS AG’s invoices are payable net within 30 days from the invoice date.
2. The Customer is not entitled to set off counterclaims where they have not been expressly admitted by us or recognized by declaratory judgement.
3. Invoices from DENIOS AG are sent electronically by e-mail. We therefore process the email address you provide for this purpose. If you have also provided your email address for the purpose of receiving further information about our products, we will also process it for this purpose, irrespective of the processing required to fulfil the purchase contract.
§ 5 Retention of title
1. The delivery item shall remain the property of DENIOS AG
a) until satisfaction of all its claims against the Customer arising from the business relations if the Customer is an individual concluding the contract for the sale of the delivery item for a purpose that cannot be ascribed to either its trade or selfemployed professional activity;
b) until satisfaction of all its claims against the Customer arising from the business relations and in addition until satisfaction of all DENIOS AG’s claims against the Customer arising from their current business relations if the Customer is an individual or legal entity or a partnership possessing legal personality acting when concluding the contract in the
exercise of its claims against the Customer arising from its trade or selfemployed professional activity. At the Customer’s request DENIOS AG shall waive retention of title if the Customer has satisfied all claims in connection with the purchase item and appropriate security has been provided for the other claims arising from current business relations.
2. Retention of title shall still apply even if DENIOS AG’s individual claims have been included in a current invoice and the balance has been struck and accepted.
3. Throughout the retention of title the Customer shall be entitled to use the item as long as it fulfills its obligations arising from the retention of title in accordance with the following provisions of this paragraph and is not in default in payment in accordance with Section 4 of these Terms and Conditions. If the Customer is in default in payment or fails to meet its obligations arising from retention of title, DENIOS AG can claim recovery of possession of he purchase item from the Customer and, after giving written notice setting an appropriate deadline, can realize it as best possible by sale in the open market, setting the proceeds of realization against the purchase price. Recovery of possession shall not constitute cancellation of the contract.
4. As long as retention of title applies, the disposal, pledging, transfer of ownership by way of security, leasing or other transfer of the purchase item impairing DENIOS AG’s security and any modification to it shall be permissible only with DENIOS AG’s prior written consent.
5. In the event of attachments by a third party, in particular in the event of seizure of the
purchase item or exercise of a contractor’s lien by a workshop, the Customer shall immediately inform DENIOS AG in writing and shall without delay make the third party aware of DENIOS AG’s retention of title.
6. DENIOS AG can cancel the contract of sale or parts of the contract of sale by written declaration if the Customer becomes insolvent, the Customer becomes overindebted, the Customer suspends payments or the Customer files an insolvency petition. The right of cancellation must be exercised before the commencement of insolvency proceedings. The Customer shall inform DENIOS AG without delay in the event of insolvency, overindebtedness or suspension of payments. If the Customer fails to do so it shall be obliged to pay DENIOS AG a flatratesum of 5% of the value of the goods. In addition, DENIOS AG can prohibit the resale, processing and disposal of the goods that are subject to retention of title. This shall not affect the provisions of the Insolvency Ordinance.
§ 6 Liability
1. DENIOS AG is liable for material defects and defects of title in accordance to the legal requirements, especially according to §§ 434 ff. of the Civil Code. The periodes of limitation for statutory claims for defects shall be two years for consumers (§ 13 of the Civil Code) and one year for entrepreneurs (§ 14 of the Civil Code) beginning with the date of delivery.
2. Our liability towards entrepreneurs for faults in the purchase item requires the customer to have properly fulfilled his obligation to examine and notify in accordance with section 377 of the Commercial Code.
3. DENIOS AG shall be liable as provided by law in cases of intent or gross negligence on the part of a representative or vicarious agent. Otherwise, DENIOS AG shall be liable only
pursuant to the Product Liability Act or for injury to life, limb or health, or for culpable breach of essential contractual obligations. However, the damages claim for breach of essential contractual obligations shall be limited to the foreseeable damage typical of the contract. Liability for damage caused by the delivery item to the Customer’s objects of legal protection, e.g. damage to other objects, shall be totally excluded.
4. The provision in para. 3 above shall extend to compensation in addition to performance
and compensation instead of performance, irrespective of the legal basis, in particular for defects, breach of obligations arising from the obligatory relation or from tort. It shall also
apply to the compensation claim for wasted expenditure.
5. DENIOS shall respond to duly lodged and justified complaints about defects by replacement or repair. If cure fails or if DENIOS AG is unable to effect cure the Customer shall be entitled to cancel the contract or reduce the purchase price.
6. The warranty period for products that carry the ‘Denios Warranty Logo’ shall be extended to two years or more if the logo has a longer warranty period. In the case of such products, provided that the product has been used in the customary way DENIOS AG shall warrant the operability of the product during the warranty period. The extended warranty does not cover moving parts (such as wheels, springs, shafts), wear parts and electrical parts. If the product requires regular servicing, the extended warranty under the ‘Denios Warranty’ shall be valid only if servicing has been carried out at the prescribed intervals in the product specification or operating instruction.
7. In the event of default in delivery DENIOS AG shall have limited liability within the scope of flatrate compensation for damage resulting from default up to a maximum of 5% of the net delivery value unless the default in delivery is due to intent or gross negligence.
§ 7 Right of return
1. The consumer (§ 13 of the Civil Code) shall have the right to countermand the contract
concluded within 30 days from delivery of the goods without giving reasons. The goods shall be returned not later than 14 days after receipt of the countermanding declaration by DENIOS AG. The immediate expenses of return shall be borne by the Customer. DENIOS AG shall pay the purchase price back to the Customer, less a customary flatrate handling charge, within 14 days from receipt of the goods by DENIOS AG. Countermand and return shall be possible only if the goods show no signs of use. In order to exercise your right to withdraw from the contract, you have to inform us (DENIOS AG, Dehmer Straße 58-66, 32549 Bad Oeynhausen, Telefon: 05731 753-0, Fax: 05731 753-199, E-Mail: firstname.lastname@example.org) about your decision to withdraw with an explicit declaration (for example with postal sent letter, telefax or e-mail).The timely dispatch of the revocation shall be deemed sufficient for compliance with the revocation term.
2. The customer has no right to withdraw from contracts concerning:the supply of goods for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader and which can occur during the withdrawal period, goods which have been specifically made to the customer’s specifications goods that are delivered sealed and that aren’t able to be withdrawn on human health grounds or hygiene reasons in case they were unsealed by the customer after delivery goods that are due to their structure inseparably mixed with other goods after their delivery.
§ 8 Place of jurisdiction/place of performance/interpretation of contract/choice of law
1. The place of performance shall be the registered office of DENIOS AG.
2. The exclusive place of jurisdiction for all present and future claims arising from the business relations with fully qualified merchants including claims based on cheques shall be the registered office of DENIOS AG.
3. The same place of jurisdiction shall apply if the Customer does not have a place of general jurisdiction in Germany, moves its residence or its usual place of abode out of Germany after concluding the contract, or if its residence or usual place of abode is unknown at the time of raising the action .
4. Should any provisions of this contract be wholly or partly ineffective or lose their legal effectiveness, this shall not affect the validity of the contract in other respects. The same shall apply in the event of a loophole in this contract. The ineffective provision shall be replaced or the loophole filled by an appropriate provision coming as close as possible, if legally possible, to what the contracting parties intended or would have intended according to the spirit and purpose of the contract if they had considered that point. If the ineffectiveness of a provision is based on a measurement of performance or time (period or date), it shall be replaced by a legally permissible measurement. The contracting parties shall establish a necessary change by a formal amendment to the wording of the contract. Otherwise, the statutory provisions according to the German Civil Code and Commercial Code shall additionally apply.
5. The contract shall be governed by the law of the Federal Republic of Germany alone. The United Nations Convention on Contracts for the International Sale of Goods – CISG – shall not apply.
§ 9 Dispute resolution
The European Commission provides a platform for online dispute resolutions (ODR) which can be accessed at ec.europa.eu/consumers/odr/. We agree to participate in extrajudicial dispute settlement proceedings before a consumer dispute resolution body. The ‘Allgemeine Verbraucherschlichtungsstelle des Zentrums für Schlichtung e.V.’, Straßburger Straße 8, 77694 Kehl am Rhein, www.verbraucherschlichter.de, is responsible.
§ 10 Privacy
As at: 05/2019