General Terms and Conditions with Customer Information
1 Scope of application
These General Terms and Conditions (hereinafter referred to as the 'GTC') of KITOTEC GmbH (hereinafter referred to as the 'Seller') shall apply to all contracts that an entrepreneur (hereinafter referred to as the Customer') concludes in regard to the goods and/or services described by the Seller in his online shop. At the same time, we oppose the incorporation of the Customer's own terms, unless otherwise agreed.
These GTC shall also apply even if the Seller performs the contract with any reservation, despite being aware of opposing terms or of terms deviating from these GTC of the Customer.
An entrepreneur for the purposes of these GTCS means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
An entrepreneur for the purposes of these GTCs also means authorities or other facilities incorporated under public law, if they act entirely within the parameters of private law in concluding this Contract.
Conclusion of contract
The product descriptions provided in the Seller's online shop do not form any binding commitment on the part of the Seller, it serves merely as an invitation to the Buyer to submit a binding offer.
The Customer may issue the offer by means of the online order form integrated into the Seller's online shop. In doing so, the Customer, by placing an order for the selected goods and/or services in the virtual shopping cart and by following the required electronic order process, submits a legally binding contract offer for the goods and/or services contained in the shopping cart by clicking on the button completing the order process. The customer may also submit the offer by phone, fax, email or by regular mail to the Seller.
The Seller may accept the Customer's offer within five days
- by sending the Customer a written order confirmation or an order confirmation in text form (fax or email), in which case the receipt of the order confirmation by the Customer is decisive, or
- by delivering the ordered goods to the Customer, in which case the receipt of the goods by the Customer is decisive, or
- by requiring the Customer to make payment after receipt of the Customer's order, or
- to the extent that payment by debit order is offered and the Customer opts for this payment method, by collecting the entire amount from the Customer's bank account, in which case the time of the debit from the Customer's account is decisive.
If several of the aforementioned alternatives apply, the contract is concluded at the moment when one of the aforementioned alternatives first applies. The deadline for accepting the offer begins on the date after the dispatch of the offer by the Customer and ends upon expiry of the fifth day following on the dispatch of the offer. If the Seller does not accept the offer of the Customer within the above period, the offer shall be deemed to have been rejected. As a result, the Customer is no longer bound by his declaration of intent.
When submitting an offer by means of the online order form of the Seller, the text is saved by the Seller and sent to the Customer after dispatch of his order along with the present GTC in text form (e.g. by email, fax or regular mail). In addition, the contract text is archived on the website of the Seller and can be retrieved by the Customer through his password-protected customer account, stating the corresponding login data free of charge, provided the Customer has created a customer account in the online shop of the Seller prior to dispatching his order.
Prior to the binding submission of the order by means of the online order form of the Seller, the Customer may amend his input at any time using the customary keypad and mouse functions. In addition, before binding submission, all input is displayed once more in a confirmation window and can be modified there as well by means of the customary keypad and mouse functions.
Contracts can be concluded only in German and English.
Orders are generally processed and contact is usually made by email and the automated order processing system. The Customer shall ensure that the email provided by them for the processing of the order is correct and that emails sent by the Seller to this address will be received. In particular, when using SPAM filters, the Customer shall ensure that all emails sent by the Seller or by a third party commissioned by the Seller to process order can be received.
If the Parties have agreed on special terms, those terms generally do not apply to other contemporaneous or future contract relations with the Customer.
In case of an economic inability of the Customer to meet his obligations to the Seller, the Seller may terminate existing mutual contracts for consideration with the Customer without notice. The same applies in case of an insolvency motion filed by the Customer. Section 321 of the German Civil Code [BGB] and of section 120 of the German Insolvency Code [InsO] remain unaffected. The Customer shall inform the Seller in good time in writing about any imminent inability to meet his de facto insolvency.
Prices and payment terms
Unless otherwise stipulated in the product description of the Seller, the indicated prices are net prices on which value-added tax at the statutory rate is due. Any packaging and shipping costs, loading, insurance (in particular transport insurance), customs and dues, if applicable will be charged separately.
In case of deliveries to countries outside the European Union, additional costs may apply under certain circumstances that fall outside the responsibility of the Seller and that must be borne by the Customer. This includes, for example, costs for the transmission of funds by banks (e.g. transfer fees, exchange rate fees) or import-related duties or taxes (e.g. customs). Such costs may be attached to the transfer of funds even where delivery is not made to a country outside the European Union if the Customer makes payment from a country outside the European Union.
In the online shop of the Seller, there are several payment options available to the Customer.
If the Parties have agreed on prepayment by the Customer, payment is due immediately after conclusion of the contract.
When selecting the payment term 'Delivery against invoice', the purchase price is due after the goods have been delivered and invoiced.
When selecting the payment term 'Delivery against invoice' and unless otherwise agreed, the invoice is due for payment without deduction within 14 (fourteen) days after receipt of the invoice. If the payment term 'Delivery against invoice' is selected, the Seller reserves the right to carry out a creditworthiness check and to reject this term in case of a negative result of the check.
Payment is deemed to have been made as soon of the corresponding value is credited to an account of the Seller. In case of a payment delay, the Seller is entitled to claim default interest at the rate of 10 percentage points above the respective base rate of interest. Any other statutory rights of the Seller in case of default of payment on the part of the Customer remain unaffected. If any claims are overdue, any incoming payments will first be credited against any costs and interest, and then to the oldest claim.
If any unforeseen cost increases occur (e.g. currency fluctuations, unexpected price increases on the part of the suppliers, etc.) the Seller is entitled to pass those costs on to the Customer. However, this applies only if the delivery is made as agreed more than four months after the conclusion of the contract.
Terms of delivery and dispatch
Unless otherwise agreed, the delivery of goods is made by shipping to the delivery address stipulated by the Customer. For the processing the transaction, the delivery address stipulated in the order processing of the Seller is decisive.
The Seller is entitled to make partial deliveries to the extent that Customer can be reasonably expected to accept them. In case of admissible partial deliveries, the Seller shall also be entitled to issue partial invoices.
The Seller reserves in any event the right to withdraw from the contract if the deliveries made by the Seller's suppliers are incorrect or improper. This shall apply only if non-delivery does not fall within the sphere of responsibility of the Seller, and if the Seller has concluded a specific hedging transaction with the supplier exercising due care. The Seller will take all reasonable efforts to procure the goods. If the goods are not available or only partially available, the Customer will be informed without undue delay, and the consideration will be reimbursed without undue delay.
The risk of accidental loss or accidental deterioration of the goods shall pass upon transfer of the goods to a suitable transport carrier. The same shall apply even if the Seller bears the costs of transport. A transport insurance will be concluded only at the express request and for the account of the Customer.
In the event that shipping of the goods to the Customer is delayed for reasons that fall within the sphere of responsibility of the latter, the risk shall pass to the Customer already upon notice of readiness for shipping. Any resulting storage costs shall be borne by the Customer.
For logistical reasons, the Customer cannot collect the goods themselves.
In case of force majeure incidents that affect contract performance, the Seller is entitled to postpone delivery for the time of the impediment and, in case of long-term delays, to withdraw entirely or partly from the contract, without such withdrawal giving rise to any claims against the Seller. Force majeure incidents are all events that are unforeseeable for the Seller or events that - even if they had been foreseeable - fall outside the sphere of influence of the seller and the impact of which on contract performance cannot be prevented by reasonable efforts of the Seller. Any statutory claims of the Customer remain unaffected.
In case of a delayed performance, the Customer shall have right of withdrawal in terms of statutory relief only if the Seller is responsible for the delay.
If the Seller is in default of performance, the Customer shall state at the request of the Seller and within a reasonable period if they will withdraw from the Contract based on the delayed performance insist on performance.
If shipping or delivery is delayed by more than one month after notice of readiness for shipping at the request of the Customer, the Customer may be charged storage fees in the amount of 0.5% of the purchase price for the delivery items for each month or part thereof, limited however to 5% in total.
The Contracting Parties remain entitled to show that the actual damage is higher or less than the charged amount.
The above liability limitations will not apply in case of intent, fraudulent intent, gross negligence or to damages resulting from injury to life, limb or health.
Retention of title
The Seller retains title to the goods delivered until full payment of the due purchase price. Furthermore, the Seller retains title to the delivered goods until satisfaction of all his claims resulting from the business relationship with the Customer.
In case of processing of the delivered goods, the Seller is deemed to the manufacturer and acquires ownership of the new goods. If the delivered goods are processed together with other materials, the Seller acquires ownership at the ratio of the invoiced amount for his goods to the other materials. If in case of a combination or intermixture of the goods of the Seller with goods of the Customer, the latter's goods are deemed to be the main item, co-ownership in the goods of Customer is transferred to the Seller at the ratio of the invoiced amount of the Seller to the invoiced amount or - in the absence thereof - to the fair value of the main item. In this case, the Customer is deemed to be the depositary.
The Customer may neither pledge or transfer objects delivered subject to retention of title as a collateral. As a reseller, the Customer is only entitled to dispose of the goods delivered subject to retention of title in the ordinary course of business and subject to the proviso that the Customer has effectively assigned the claims against his customers in connection with the resale to the Seller and that the Customer transfers ownership in the goods to his customers subject to payment. With the conclusion of the Contract, the Customer assigns his claims against his customers in connection with such transactions by way of collateral to the Seller, who at the same time accepts the assignment.
The Customer shall notify the Seller immediately of any interference with the goods owned or co-owned by the Seller or with the assigned claims. The Customer shall immediately transfer amounts collected in terms of assigned claims to the Seller as soon as the claims have become due for payment.
If the value of collaterals of the Seller exceed the amount of the secured claims by more than 10%, the Seller will release a corresponding part of the collateral at the request of the Customer.
Liability for defects / Warranty
The statutory provisions for the liability for defects apply to any defects in the goods sold. Notwithstanding the above, the following applies:
Any non-essential defect does not engage the Seller's liability and does not entitle the Customer to refuse acceptance of the goods. If some of the goods suffer from a defect that is not merely non-essential, the Customer shall not be entitled to object to the entire delivery. Something else applies only in case the Customer cannot be reasonably expected to accept the partial delivery. In addition, the Customer may withhold payments only to the extent that is reasonably proportionate to the material defect that has occurred. If the goods are provided free of charge, the Seller is only liable for defects in case of intent or gross negligence.
Claims for defects do not arise in case of natural wear and tear and damage, after the transfer of risk, from faulty or negligent handling, excessive use, unsuitable equipment, or due to special external influences which are not envisaged in terms of the contract, as well as in case of non-reproducible interferences. If the Customer or a third party carry out improper modifications or repair works, liability shall be excluded for such works and for any resulting claims for damages, unless the Customer is able to show that the alleged defect was not caused by such modifications or repair works.
For new goods, the prescription period for claims for defects is one year from the date of transfer of risk. In case of used goods, the rights and claims for defects are excluded.
The above limitations and liabilities and reductions of prescription periods do not apply
- to goods delivered that are typically used for construction purposes and have caused a defect in the building,
- for damage resulting from injury to life, limb or health based on an intentional or negligent breach of duty by the Seller or based on an intentional or negligent breach of duty by legal representatives or vicarious agents of the Seller,
-for other damage based on an intentional or grossly negligent breach of duty of the Seller or based on an intentional or grossly negligent breach of duty by legal representatives, executive employees or vicarious agents of the Seller,
- in cases where the Seller has fraudulently concealed the defect, and
- to the right of recourse pursuant to section 478 BGB.
In case of cure, the Seller may either repair the defect or deliver substitute goods at his choice.
If the Seller opts for delivery of substitute goods, the prescription period does not start again.
If the defect was cured by way of substitute delivery, the Customer is obliged to return the goods initially delivered to the Seller within 30 days. The return package must indicate the reason for the return delivery, the Customer's name, the number issued for the sale of the defective goods, which allows the Seller to identify the goods returned. As long and as far as the identification of the returned goods is not possible for reasons for which the Customer is responsible, the Seller is not obliged to accept the returned goods or to repay the purchase price. The costs for renewed shipping shall be borne by the Customer.
If the Customer delivers fault-free goods for the purpose of a substitute delivery the Seller is entitled to claim compensation for usage pursuant to section 346(1) BGB from the Customer. Any further statutory rights remain reserved.
If the Customer acts as a merchant within the meaning of section 1 of the German Commercial Code [HGB], the Customer must comply with the commercial duties of examination and notification pursuant to section 377 HGB. If the customer omits to comply with the duty of notification stipulated there, the goods are deemed to have been approved.
Liability for default is regulated conclusively in the section on "Performance default". In all other respects, the Seller shall be liable in terms of all contractual, quasi-contractual and statutory, including delictual, claims for damages and reimbursement of expenses as follows:
The Seller is liable without restriction
- for any legal cause in case of intent or gross negligence,
- in case of intentional or negligent injury to life, limb or health,
- based on a guarantee, unless stipulated otherwise,
- based on mandatory liability, e.g. in terms of the German Product Liability Act.
If the Seller has negligently breached a material contractual obligation, liability is limited to the contract-typical, foreseeable damage, unless the Seller is liable without limitation pursuant to the preceding provision. Material contractual obligations are defined as obligations the contract imposes on the Seller according to its contents for achieving the contractual purpose, and the fulfilment of which makes the proper execution of the contract possible in the first place, and on whose compliance the customer may trust regularly.
Liability of the Seller is excluded in all other instances.
The above liability provisions apply also in regard to the liability of the Seller for his vicarious agents and legal representatives.
Claims of the Customer against the Seller - with the exception of the claims stipulated in section "Liability for defects / Warranty" shall be prescribed within a period of one year from the date of knowledge of the facts establishing a claim, however, at the latest five years after providing the service, unless stipulated otherwise in the preceding provision.
Right of retention, assignment
Rights of retention and rights to refuse performance of the Customer are excluded, unless the Seller does not dispute the underlying counter claims or if those claims have been established with final and binding effect.
Assignment of claims arising from the contract concluded with the Customer by the Customer, in particular an assignment of any claims for defects on the part of the Customer, are excluded.
Applicable law, place of jurisdiction
The laws of the Federal Republic of Germany, excluding the laws on the international sale of goods, apply to all transactions between the Parties.
If the Customer is a merchant, a legal entity under public law or public special fund having its registered office in the territory of the Federal Republic of Germany, the exclusive jurisdiction for any disputes arising under this contract shall be the registered office of the Seller. If the Customer has his registered office outside the territory of the Federal Republic of Germany, the registered office of the Seller shall be the exclusive place of jurisdiction for all disputes arising from this contract. However, the Seller shall be entitled to file an action at the court competent for the registered office of the Customer.
Sale exclusively to traders and institutions under public law