Terms and conditions
Article 1 General and scope
- These General Terms and Conditions of Sale (“GTCS”) shall apply to all orders for goods placed with ACTC GmbH with its registered office in Düsseldorf (AG Düsseldorf HRB 61280; hereinafter “Seller”) by the customer (hereinafter “Buyer”; Seller and Buyer hereinafter jointly the “Parties”) if the Buyer is an entrepreneur (§ 14 BGB) or a legal entity under public law.
- References in the GCS to “us” or “we” shall always mean the Seller.
- These GCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become an integral part of the contract if and to the extent that we expressly consent to their application This consent requirement shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s GTC.
- Our GTC shall also apply to all future transactions between the parties.
- If, in individual cases, supplements and amendments are made to the agreements reached, including these GTCS, our written confirmation shall be authoritative for the content of such agreements. Telecommunication by fax or e-mail shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
- References to the applicability of statutory provisions shall only have a clarifying effect Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
Article 2 Offer and conclusion of contract
- The order of the goods by the Buyer shall be deemed to be a binding Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within four (4) weeks after its receipt by us.
- The acceptance can be declared either in text form (e.g. by order confirmation by letter, fax or e-mail) or by delivery of the goods to the Buyer.
- If we have provided the Buyer with catalogs, technical documentation (e.g. drawings, illustrations, calculations, computations) and other product descriptions or documents – also in electronic form – we shall retain all property rights and copyrights thereto. The provision of such documents shall not constitute an offer to the Buyer; their disclosure to third parties shall require our prior consent. Unless otherwise agreed, the documents shall be returned upon termination of the contractual relationship or upon our request.
- The Buyer shall be bound to the concluded purchase contract and to accept the goods If the Buyer wishes to cancel the contract after the conclusion of the contract, the Seller may agree to a cancellation of the contract in individual cases under the condition that the Buyer pays a cancellation fee in the amount of 50% of the purchase price of the goods to the Seller. The right of withdrawal and other warranty for defects shall remain unaffected by this provision.
Article 3 Prices and terms of payment
- Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply in accordance with the price list, ex warehouse, plus the respective statutory value added tax.
- In the case of sale by delivery to a place other than the place of performance (Article 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. We do not take back transport packaging and all other packaging in accordance with the packaging regulations; it becomes the property of the Buyer.
- Unless otherwise agreed, the purchase price shall be due immediately and payable within 14 calendar days of receipt of a proper invoice.
- We are not obliged to accept bills of exchange or checks as means of payment. In the event of acceptance, only the respective successful redemption shall be deemed payment.
- The payment of the purchase price shall be made exclusively to the account stated in the invoice. The credit entry on our account shall be decisive for the timeliness of the payment.
- Upon expiry of the payment period specified in Article 3, Paragraph 3 above, the Buyer shall be deemed to be in default of payment. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected. For a reminder after the occurrence of default, we shall charge a reminder fee of EUR 15.00. Furthermore, the Buyer shall be obliged to reimburse all other expenses caused by the default, in particular the costs of legal action, as compensation for default damages.
- The Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed.
- If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer’s inability to pay (e.g. by an application for the institution of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract.
- If the goods are delivered against advance payment and the buyer does not pay even after a reminder, the seller has the right to withdraw from the contract. In such a case, the Seller shall be entitled to claim a lump-sum minimum compensation amounting to 50% of the purchase price of the goods. Any further damages shall remain unaffected. This shall also apply in the event of withdrawal pursuant to § 3 (8) above.
Article 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
- Delivery shall be made ex warehouse, which is also the place of performance At the request and expense of the buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
- The shipment shall only be insured by the Seller against theft, transport, fire and water damage or other insurable risks at the express request of the Buyer and at the Buyer’s expense.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover. In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, shall pass to the Buyer upon delivery of the goods to the forwarding agent, carrier or other third party designated to carry out the shipment. It is equal to the handover if the buyer is in default of acceptance.
Article 5 Delivery period and delay in delivery
- Unless otherwise agreed and unless specific calendar days are involved, delivery periods shall commence upon conclusion of the contract.
- Separately agreed delivery periods shall be reasonably extended – even within an already existing delay – in the event of the occurrence of unforeseen obstacles beyond our control (e.g. weather conditions, fire events, floods, strikes, lockouts or the failure of our own suppliers to deliver despite timely and sufficient cover) by the duration of the hindrance plus a reasonable start-up period. This shall also apply if these circumstances occur with subcontractors or sub-suppliers. We shall notify the Buyer of the beginning and end of such hindrances without delay. In these cases, the buyer has the right to demand a declaration from us as to whether we will withdraw or deliver within a reasonable period of time. If this declaration is not made within 2 weeks, the buyer may withdraw from the contract. In the event of withdrawal, we will immediately refund any payments made by the buyer.
- The rights of the Buyer Article 8 of these GCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and / or subsequent performance) shall remain unaffected.
Article 6 Retention of title
- We retain title to the delivered goods until all claims arising from the business relationship with the buyer have been settled in full In the event of breach of contract by the buyer, including default in payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and withdrawal. If the purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
- The goods subject to retention of title may neither be pledged to third parties nor assigned as security before payment has been made in full. In the event of access by third parties to the goods subject to retention of title, in particular in the event of seizure, the Buyer shall draw attention to our ownership and notify us immediately in text form so that we can enforce our ownership rights.
- The buyer is entitled to sell the goods subject to retention of title in the ordinary course of business, provided that he is not in default of payment. By way of security, the Buyer hereby assigns to us in full any claims against third parties arising from the resale of the goods. The obligations of the purchaser stated in para. 2 shall also apply in respect of the assigned claims.
- The purchaser shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the buyer meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
Article 7 Warranty, material defects
- In the event of a breach of a contractual obligation, the Buyer shall be entitled to the statutory rights vis-à-vis us in accordance with the following provisions.
- The prerequisite for any warranty rights of the buyer is his proper fulfillment of all inspection and complaint obligations owed under 377 HGB.
- Representations in catalogs (lookbooks) or other sales brochures only approximate the actual condition of the goods. This applies in particular with regard to color reproduction. A quality of the goods is owed that comes as close as possible to the depicted product according to the state of the art, whereby grease and natural staining or leather abrasion correspond to the natural quality of the material. This applies in particular to leather goods. The production from the material leather leads factually to wear and tear, which in turn do not represent defects.
- In the reproduction of our exhibits, there may be minor deviations that cannot be avoided from a technical point of view, which do not justify any claim by the buyer for rectification or subsequent delivery.
- If the delivered item is defective, the purchaser may first choose to have the defect remedied (rectification) or to have a defect-free item delivered (replacement) as subsequent performance. If the purchaser does not declare which of the two rights he chooses, we may set a reasonable deadline for him to do so. If the purchaser does not make the choice within the deadline, the right of choice shall pass to us upon expiry of the deadline.
- We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due.
- If the supplementary performance has failed or if a reasonable period to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price In the case of an insignificant defect, however, there shall be no right of withdrawal.
- Claims of the buyer for compensation of futile expenses exist only in accordance with Article 8 and are otherwise excluded.
- Warranty claims for the delivery of newly manufactured delivery items shall expire one year after delivery to the Buyer. The provisions of § 478, 479 BGB remain unaffected. For replacement deliveries we provide warranty to the same extent as for the original delivery item; for replacement deliveries the warranty period shall start anew.
Article 8 Other liability
- This exclusion of liability shall not apply if we, our legal representatives or vicarious agents have acted with intent or gross negligence and in the absence of a guaranteed quality of the item if and to the extent that the guarantee was intended to protect the purchaser against damage that did not occur to the respective delivery item itself. Liability for damages resulting from injury to life, body or health caused by negligent breach of duty by the Seller, its legal representatives or vicarious agents shall neither be excluded nor limited. Furthermore, this exclusion of liability shall not apply in cases of liability under the Product Liability Act.
- Notwithstanding the preceding paragraph, we shall be liable in the event of culpable breach of material contractual obligations, but only for the foreseeable loss typical of the contract. A material obligation is an obligation the fulfillment of which is essential to the proper performance of the contract and the breach of which jeopardizes the attainment of the purpose of the contract and compliance with which the Buyer may regularly rely on.
- Insofar as our liability is excluded or limited in accordance with the above paragraphs, this shall also apply to the personal liability of organs, employees, representatives and vicarious agents.
Article 9 Internet sales
- In the case of sales on the Internet, the buyer will use a website that meets the quality requirements of the purchased goods In particular:
- The buyer will identify himself as the seller with his own name and a summonable address, as well as all legal requirements for distance selling
- Furthermore, the Buyer will offer the services via its website in a way that can usually be expected for high-quality products such as the goods purchased here, i.e. offer appropriate advice and ensure a fast and flawless purchase transaction (including complaints).
- The domain name of the Buyer’s website may not contain the name, the company or any other sign of the Seller protected as a trademark or other business designation.
- The Buyer’s website must not give the impression to a customer that the Buyer has a special legal relationship with the Seller, for example as a specially authorized representative of the Seller.
- The Buyer shall not, without prior consent, make any entry or publish on the Internet any material relating to the Seller and/or the Seller’s business that indicates or suggests a special legal relationship of the Buyer with the Seller.
- Violations of the above provisions shall entitle the Seller to assert claims for injunctive relief and damages.
Article 10 Choice of Law and Jurisdiction
- The law of the Federal Republic of Germany shall apply to these GCS and all legal relationships between us and the Buyer to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
- The exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Düsseldorf; however, we shall also be entitled to bring an action at the general place of jurisdiction of the Buyer