GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
OF KLEINMETALL GMBH FOR BUSINESS TRANSACTIONS IN THEIR WEB SHOP (WEB SHOP GTS)
(ISSUE DECEMBER 2019)
SECTION A: GENERAL – APPLICABILITY
Our web shop GTS apply to any business between our company
General Manager: Sven Pfeifer
responsible for the contents in accordance with Sec. 5 TMG:
Responsible for the contents: Sven Pfeifer
Address of the person responsible for the contents: Hainstraße 52 D-63526 Erlensee Germany
Turnover Tax ID.: DE 113564871
Competent Court of Justice: Amtsgericht Hanau
HRB Number: 1403
Phone: +49 (0) 6183 91120 - 0
Fax: +49 (0) 6183 72152
and our customers (hereinafter referred to as “Buyer“) concerning sale and/or delivery of movable objects (hereinafter referred to as “Goods“), which is done via our Web shop on the domain kleinmetall.de. The regulations of sections A and B shall apply to Buyers who order as consumers in the sense of Sec. 13 BGB (German Civil Code); the regulations of section C additionally apply to Buyers who order as entrepreneur in the sense of Sec. 14 BGB or as a legal entity of public law.
- Buyer is on the one hand a consumer if the purpose of ordering can neither be allocated to his business nor to his freelance occupational activity. On the other hand, entrepreneur is any natural or legal entity or a partnership with legal capacity who/which is exercising its commercial or freelance occupational activity when concluding a contract.
- We shall not accept any general or particular contract conditions of the customer deviating from the present GTS. This shall also apply if we do not explicitly contradict their inclusion.
- The contract language is exclusively English.
SECTION B – ORDERING AS CONSUMER
Offers, contract conclusion, product data
- The presentation and promotion of articles in our online shop does not mean any binding offer for conclusion of a purchase contract.
- Buyer can choose products from our web shop range and collect and order them in a shopping basket. Details on our web shop, registration possibility and the order process are described on our website at "https://www.kleinmetall.de/en/ordering-process/".
- The purchase order presents the binding request of Buyer for contract conclusion. Buyer shall be bound to his/her order for a period of 2 (two) weeks upon order placement. We shall immediately send Buyer an acknowledgement of receipt by email to the email address indicated by Buyer in which the Buyer's order is listed up again and which Buyer can print out as necessary. The acknowledgement of receipt is used to inform Buyer that we have received his/her order. The acknowledgement of receipt does not mean any acceptance of order. The contract shall only take effect if we accept the purchase order within the offer acceptance deadline by a separate declaration of acceptance or by delivery of the ordered goods.
As to articles from our Exclusive range – manual manufacture the following shall apply by way of derogation: If Buyer has ordered an article from our product group: Exclusive – range – manual manufacture, Buyer shall receive a separate offer for this article including the current delivery time. Only with Buyer's written acceptance of offer a contract for the respective article shall be deemed as concluded in accordance with the conditions defined in the offer.
- Should delivery of ordered goods not be possible, as the goods might not be in stock, we shall refuse acceptance of the order. A contract is then not concluded. We shall immediately inform Buyer and immediately reimburse any consideration that may have already been provided.
- The purchase order shall be stored electronically and can be recalled by registered Buyers at any time via their customer account created during registration.
- Details on the subject matter of the delivery or performance (e.g. weights, dimensions, practical values, load capacity, tolerances and technical data) from us and our presentation of the same (e.g. drawings and figures) shall be merely approximate unless exact conformity is required for the use of the goods for the contractually stipulated purpose. They are no guaranteed characteristics but descriptions or identifications of the delivery or performance. Customary deviations and deviations that arise due to legal regulations or represent technical improvements as well as replacement of components by equivalent parts shall be admissible as far as they do not impair use of the goods for the contractually intended purpose.
Revocation right, revocation instructionIn the event of a purchase order as consumer Buyer shall have a revocation right within the scope of the legal regulations. On order placement, we will notify Buyer with an explicit revocation instruction.
Delivery and shipping costs, delivery time
- Shipment of the goods shall be made – unless otherwise agreed – upon our choice e.g. by parcel service or forwarding agent. On order placement, Buyer shall be informed separately about the shipping costs, which he shall bear.
- Our liability in case of delay shall be defined according to Number V.
Terms of payment, offset
- We will inform you on possible modes of payment on our website and also on order placement.
- Payment of the purchase price shall be due immediately with contract conclusion in accordance with Number I. 5. If the payment date is determined according to the calendar, Buyer shall be delayed even without reminder when he fails the deadline.
- Buyer shall only be entitled to offset rights if his/her counterclaims have been legally determined or are undisputed. In case of defects, the offset rights with claims for payment due to these defects shall remain unaffected.
Claims for defects of Buyer
- Legal regulations shall apply to the rights of Buyer because of material and legal defects of the goods unless otherwise agreed in the following.
- If the delivered object is defective, we can, at our discretion, choose subsequent fulfilment by rectification of the defect (remedy) or by delivery of a perfect object (replacement). Our right to refuse the type of subsequent fulfilment chosen under legal requirements, shall remain unaffected.
- If a request for rectification of Buyer proves to be unjustified, we shall be entitled to ask Buyer for reimbursement of costs arising therefrom.
- If subsequent fulfilment has failed or an appropriate deadline to be set by Buyer for the subsequent fulfilment has expired to no avail or is dispensable according to law, Buyer can rescind the contract or reduce the purchase price / reimbursement. In case of a minor defect, there shall however be no right to rescind.
- Claims for damage and/or replacement of Buyer concerning wasted expenditure shall only apply according to the provisions of Number VI. and shall otherwise be excluded.
- Insofar as nothing else arises from these web shop GTS, we shall be liable for violation of contractual and non-contractual obligations in accordance with the relevant legal regulations.
- We shall only be liable for damages – for which legal reason whatsoever – due to intention and gross negligence. In case of simple negligence we shall only be liable
- for damages due to injuries to life, body or health,
- for damages due to violation of an essential contractual obligation (obligation the fulfilment of which only enables proper performance of the contract and the compliance of which the contracting party can or may regularly rely on); in this case our liability is however limited to the replacement of the foreseeable, typically arising damage.
- The limited liability resulting from Number 2 shall not apply if we maliciously concealed a defect or took over a warranty for the quality of the goods. The same applies to claims of Buyer according to the product liability law.
Retention of titleWe reserve the property of the goods delivered by us until complete payment of the purchase price for these goods.
Information on data processing
- We collect and process the Buyer's data indicated within the framework of the order for contract processing. We particularly respect the regulations of the federal Data Protection Law and the Telemedia Act here. Without Buyer's consent we will only collect, process or use inventory and usage data insofar as this is necessary for handling the contractual relationship and for utilisation and settlement of telemedia.
- Without Buyer's consent, we will not use Buyer's data for advertising, market research or opinion research purposes.
- Buyer has the possibility to register with us as customer and to store his/her data going beyond individual orders in a customer account. The registered Buyer always has the possibility to recall the data stored in his/her profile under the link Login / User account and to change them. Otherwise, refer to the data protection declaration with regard to Buyer's consent and other information on data collection, processing and use, which can always be downloaded on our website via the data protection link.
Choice of lawThe law of the Federal Republic of Germany applies to these web shop GTS and the contract between Buyer and us.
The UN purchasing right shall not apply. This choice of law may not (in accordance to Article 6 paragraph 2 of the REGULATION (EC) No 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 June 2008 on the law applicable to contractual obligations (“Rome I”)), however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of Article 6 paragraph 1 Rome I.
As a result, for a Buyer who orders as a consumer the protection which is afforded to him by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence applies regardless of the choice of the Law of the Federal Republic of Germany.
SECTION C – ENTREPRENEURIAL BUYER
- This section C exclusively apply to Buyers who order in our web shop as entrepreneur according to Sec. 14 BGB (German Civil Code) or as a legal entity of the public law or special fund under public law (hereinafter referred to as “entrepreneurial Buyer”). Unless otherwise or especially agreed in the following, the previous sections A and B of these web shop GTS shall also apply to entrepreneurial Buyers.
- Our web shop GTS shall exclusively apply. Deviating, contradicting or completing General Terms of Business of the entrepreneurial Buyer shall only become an integral part of the contract if we gave our explicit consent to their validity. This requirement of consent shall apply at any rate, e.g. even if we execute delivery to Buyer being aware of his/her GTS without reserve.
Revocation right, revocation instructionDeviating from the aforementioned section B II entrepreneurial Buyers shall not have any revocation right.
Offset, retention, place of fulfilment, re-storage
- Entrepreneurial Buyer shall only be entitled to offset or retention rights if his/her counterclaims have been legally determined or are undisputed. In case of defects Number IV. 3. Sent. 2 shall remain unaffected.
- Place of fulfilment for all obligations of both parties shall be our premises in Erlensee unless any other place of fulfilment has been expressly agreed for a certain duty of performance.
- We shall only take back goods sold in cases determined by law (in particular after justified revocation or withdrawal) or if we agree with Buyer to take back the goods in individual cases. Free right to return has not been agreed.
Insofar as we are not obliged by law to take back the goods and nothing else has been agreed before with Buyer, we shall take back goods returned to us only against payment of a fee (“Re-storage fee”). The re-storage fee is 25% of the agreed gross purchase price of the returned goods. Buyer accepts this storage offer with return of the respective goods.
If we suffer a damage due to an unauthorised return of sold goods, we shall be entitled to demand flat-rate compensation amounting to the re-storage fee from Buyer as minimum damage. Buyer shall reserve the right to prove that no damage or an essentially less damage than the flat rate incurred us. A paid re-storage fee shall be considered with the damage. We reserve further claims.
Claims for defects of the entrepreneurial Buyer
- Unless otherwise agreed, the legal regulations apply to the rights of the entrepreneurial Buyer due to material and legal defects of the goods. The legal special regulations for final delivery of the goods to a consumer (supplier regress according to Sec. 478, 479 BGB – German Civil Code) shall at any rate remain unaffected.
- The defect rights of the entrepreneurial Buyer are based on the fact that he has complied with his legal inspection and notification duties (§ 377 HGB). If during inspection or later a defect occurs we shall be notified immediately in writing. Regardless of this examination and notification duty, the entrepreneurial Buyer shall notify obvious defects (including wrong and short delivery) in writing immediately upon receipt of the goods. Should the entrepreneurial Buyer fail to inspect the goods and/or send the notice of defect, our liability shall be excluded for the defect not reported at all or in time.
- We shall be entitled to make the owed subsequent fulfilment dependent on the fact that the entrepreneurial Buyer pays the due purchase price / the due reimbursement. The entrepreneurial Buyer shall however be entitled to retain an appropriate part of the purchase price / reimbursement in ratio to the defect.
- Otherwise, the regulations in section B V shall apply.
Retention of title towards entrepreneurial BuyersWe reserve property of the goods delivered until complete payment of all present and future claims arising from the delivery contract and a current business relationship (secured claims); in case of an existing current account relationship, the retention is related to the recognised balance.
Place of jurisdictionIf the Buyer is a merchant, legal entity of public law or special fund of public law, our place of business is the place of jurisdiction; however, we shall also be entitled to sue Buyer at his place of business or at any other place of jurisdiction permitted in an individual case.