General terms and conditions
for orders from entrepreneurs for commercial purposes via
the Online Shop
of Fluvius GmbH, Berta-Benz Strasse 22, 40670 Meerbusch, Germany
www.fluvius-shop.de or www.fluvius-shop.com
I. scope
(1) These General Terms and Conditions apply exclusively to contracts concluded by Fluvius GmbH, Berta-Benz-Straße 22, 40670 Meerbusch (hereinafter referred to as “Seller”) with companies, legal entities under public law, special funds under public law and tradesmen (hereinafter referred to as “Customers”) for orders placed by the Customer for the goods and other services offered in the Seller’s online shop (hereinafter referred to as “Online Shop”) exclusively for the commercial purposes of the Customer.
A consumer is any natural person who concludes the contract for a purpose that cannot be attributed to either his commercial or his self-employed professional activity (§ 13 of the German Civil Code – BGB).
Entrepreneur is a natural or legal person or a partnership with legal capacity which acts in the exercise of its commercial or independent professional activity when concluding the contract (§ 14 Paragraph 1 BGB).
(2) All deliveries, services and offers of the seller are made exclusively on the basis of these general terms and conditions. These are an integral part of all contracts which the seller concludes with his customers regarding the deliveries or services offered by him. They shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.
(2) Terms and conditions of the customer or third parties shall not apply, even if the seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter that contains or refers to the terms and conditions of the Customer or of a third party, this does not constitute an agreement with the validity of those terms and conditions.
II. performance specifications
(1) All offers contained in the seller’s online shop are subject to change without notice and merely represent a non-binding invitation to the customer to submit a binding offer to the seller to order the goods. Product descriptions in the seller’s online shop do not have the character of an assurance or guarantee.
(2) The legal relationship between the Seller and the Customer shall be governed solely by the contract concluded in writing between the Seller and the Customer regarding the latter’s order, including these General Terms and Conditions. This reproduces all agreements between the parties to the contract relating to the subject matter of the contract in full. Verbal promises made by the seller prior to the conclusion of this contract are legally non-binding and verbal agreements between the parties to the contract shall be replaced by the written contract unless it is expressly stated in each case that they continue to be binding.
(3) Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, shall be effective only if made in writing.
Written form. With the exception of managing directors or authorised signatories, the employees of the seller are not entitled to make any verbal agreements deviating from this. In order to comply with the written form, it is sufficient to transmit the signed declaration by telecommunication, in particular by fax or e-mail, provided that a copy is sent.
(4) Information provided by the Seller regarding the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as illustrations provided by the Seller (e.g. drawings and illustrations) are only approximate unless the applicability for the contractually intended purpose presupposes exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Deviations customary in the trade and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible provided that they do not impair the usability for the contractually intended purpose.
(5) The seller reserves the right of ownership or copyright to all offers or cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. The customer may not make these objects accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of the seller. At the Seller’s request, he shall return these items to the Seller in their entirety and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data and for the purpose of usual data backup.
III. conclusion of contract
(1) The customer can submit the binding offer via the online order form integrated in the seller’s online shop. After placing the selected goods in the virtual shopping basket and completing the electronic ordering process, the customer submits a legally binding contractual offer with regard to the goods contained in the shopping basket by clicking on the button “order with payment” at the end of the ordering process. Before submitting his binding offer, the customer can check, change, delete and also print his offer text by correcting his entries using the usual keyboard and mouse functions until he clicks the button completing the order process. Only by clicking on the “Pay to order” button does the customer submit his binding offer (order) to conclude a sales contract for the goods to Fluvius GmbH.
By submitting his binding offer (order) via the seller’s online order form, the text of the order is stored by the seller and the order, including the seller’s present General Terms and Conditions to the customer immediately by e-mail) is confirmed by the seller (order confirmation). This order confirmation is not an acceptance of the binding offer of the customer by the seller.
(2). The customer’s offer shall only be deemed accepted by the seller if the seller transmits a written order confirmation or an order confirmation in text form (letter, fax or e-mail) to the customer within 7 working days of receipt of the offer by the seller, whereby the receipt of the order confirmation by the customer shall be decisive in this respect, or by delivering the ordered goods to the customer, whereby the receipt of the goods by the customer shall be decisive in this respect, or by requesting the customer to pay after submission of the customer’s order.
(3) If several of the aforementioned alternatives exist, the contract shall come into effect at the point in time at which one of the aforementioned alternatives occurs first. The period for acceptance of the offer begins on the day after the dispatch of the offer by the customer and ends with the expiration of the 7th day, which takes place on the dispatch of the offer. If the Seller does not accept the Customer’s offer within the aforementioned period, this shall be deemed a rejection of the offer with the consequence that the Customer is no longer bound by his declaration of intent.
IV. Prices and payment
(1) The prices shall apply to the scope of services and deliveries specified in the order confirmations. Additional or special services will be charged separately. The prices are quoted in Euro ex warehouse plus packaging, statutory value added tax, customs duties for export deliveries as well as fees and other public charges.
(2)
(a) The payment options are communicated to the customer in the online shop of the seller.
(b) Unless expressly agreed otherwise, the Seller shall only deliver
against prepayment (in the manner indicated on the order form in the online shop) or cash on delivery, in each case against invoice.
(c) If delivery on account has been agreed, Seller’s invoices shall be due for payment within 30 days of delivery of the goods and receipt of the invoice by the recipient of the invoice.
(3) If third party providers are commissioned with the payment processing, e.g. Paypal, their general terms and conditions apply. If the Paypal payment is rejected, the customer undertakes to pay the purchase price plus any costs incurred within 10 days of receipt of the service.
(4) The customer is not entitled to any right of set-off or retention unless the counterclaim is undisputed or legally established.
(5) The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are suitable to significantly reduce the creditworthiness of the Customer and which endanger the payment of the outstanding claims of the Seller by the Customer from the respective contractual relationship (including from other individual orders for which the same framework contract applies, if any).
V. delivery periods
(1) Deliveries are made ex seller’s warehouse, unless otherwise agreed.
(2) Periods and dates for deliveries and services promised by the seller are always only approximate, unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) If delivery against advance payment has been agreed, the delivery periods shall commence on the day after receipt of the amount of money on the seller’s account and shall end on the expiry of the last day of the period. If the last day of the period falls on a Saturday, Sunday or a public holiday recognised by the state at the place of delivery, the next working day shall take the place of such a day.
(4) If several goods are ordered, the latest delivery time of the articles in the shopping basket is decisive for the calculation. In the case of goods for which a separate date for the start of delivery is specified in individual cases, the delivery period shall begin at the earliest with this date. In the case of items shipped by forwarding agency, a personal appointment is also made with the customer to agree a delivery date.
(5) Should one or more of the ordered items not be available at short notice or should the agreed delivery time be delayed, the customer will be informed immediately by the seller by e-mail.
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller for whatever reason, the Seller’s liability shall be limited to damages in accordance with Section IX of these General Terms and Conditions.
(7)
(a) Even if the goods are marked as “in stock” on the order form, the Seller shall be entitled to sell these goods if
aa) a reference has been made on the order form to the limited availability of the goods or
bb) the delivery is made against advance payment and payment is not received by the Seller within a period of 5 working days after acceptance of the offer (order confirmation) by the Seller.
In these cases, the goods will only be dispatched within the agreed period or within the period specified by the seller while stocks last.
(b) If no delivery period is specified or otherwise agreed or if the Seller is no longer obliged to comply with an agreed delivery period due to the justified sale, dispatch within four weeks of the relevant commencement of the delivery period pursuant to V para. 2, 3 or 4 shall be deemed to have been agreed.
(8) In the event that the Seller’s Supplier does not deliver to the Seller on time goods which have been indicated on the order form as “only available to a limited extent” and which have been sold off, the originally intended delivery period shall be extended until delivery by the Seller’s Supplier plus a period of three working days, but by a maximum of four weeks, provided that the Seller is not responsible for the delay in delivery by his supplier and has ordered the goods again without delay.
(9) If the goods cannot be delivered or cannot be delivered in time to the customer for one of the reasons stated in Clauses 7 and 8, the seller shall notify the customer of this immediately. If the goods are not available from the seller’s supplier for the foreseeable future, the seller is entitled to withdraw from the purchase contract. In the event of rescission, the Seller shall reimburse the Customer immediately for any payments made to the Seller.
(10) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts) for which the Seller is not responsible. Insofar as such events substantially impede or render impossible delivery or performance by the Seller and the impediment is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service deadlines shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. If acceptance of the delivery or service cannot be reasonably expected of the customer as a result of the delay, the customer may withdraw from the contract by immediate written declaration to the seller.
VI. Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship shall be the registered office of the seller, unless otherwise agreed.
(2) The mode of dispatch and the packaging are subject to the dutiful discretion of the seller.
(3) In the case of goods delivered by freight forwarders, delivery shall be “free kerbstone”, i.e. up to the public kerbstone nearest to the delivery address specified by the customer up to the curb or sidewalk of the “delivery address specified by the customer” (for this also see above V number 4 sentence 3).
(4) The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party appointed to carry out the shipment. This shall also apply if partial deliveries are made or if the Seller has taken over other services. If dispatch or delivery is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer from the day on which the delivery item is ready for dispatch and the seller has notified the customer accordingly.
VII. Retention of title
(1) The following agreed retention of title serves to secure all existing current and future claims of the Seller against the customer arising from the supply relationship between the contractual partners on the basis of the goods and services ordered by the customer from the Seller, including balance claims arising from a current account relationship limited to this supply relationship.
(2) The goods delivered by the seller to the customer shall remain the property of the seller until all secured claims have been paid in full. The goods as well as the goods which take their place in accordance with the following provisions and which are covered by the reservation of title shall hereinafter be referred to as “reserved goods”.
(3) The customer shall store the reserved goods free of charge for the seller.
(4) The customer is entitled to process and sell the reserved goods in the ordinary course of business until the event of realisation (hereinafter paragraph 9) occurs. Pledges and transfers by way of security are not permitted.
(5) If the reserved goods are processed by the customer, it is agreed that the processing takes place in the name and for the account of the seller as manufacturer and that the seller directly acquires the ownership or – if the processing takes place from materials of several owners or the value of the processed object is higher than the value of the reserved goods – the co-ownership (fractional ownership) of the newly created object in the ratio of the value of the reserved goods to the value of the newly created object. In the event that no such acquisition of ownership should occur with the seller, the customer already now transfers his future ownership or – in the above-mentioned proportion – co-ownership of the newly created object to the seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the seller shall transfer to the customer, insofar as the main item belongs to him, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.
(6) In the event of resale of the reserved goods, the customer hereby assigns to the seller by way of security any claims against the purchaser arising therefrom – in the event of co-ownership of the reserved goods by the seller pro rata in accordance with the co-ownership share. The same applies to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. The seller revocably authorises the customer to collect the claims assigned to the seller in his own name (direct debit authorisation). The seller may only revoke this direct debit authorisation in the event of a sale.
(7) If third parties access the reserved goods, in particular by seizure, the customer shall immediately inform them of the seller’s ownership and inform the seller thereof in order to enable him to enforce his ownership rights. If the third party is not in a position to reimburse the seller for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable to the seller for this.
(8) The Seller shall release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50 %. The seller is responsible for selecting the items to be released thereafter.
(9) If the seller withdraws from the contract in the event of conduct contrary to the contract on the part of the buyer – in particular default in payment – (case of realisation) he is entitled to demand the return of the reserved goods.
VIII. Warranty / Liability for Material Defects
(1) The warranty period is one year from delivery. This period shall not apply to claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the seller or his vicarious agents, which shall in each case become statute-barred in accordance with the statutory provisions. This period shall also not apply if the law pursuant to § 438 para. 1 no. 2 BGB (buildings and items for buildings), 478, 479 BGB (limitation of recourse claims) and § 634 letter a para. 1 BGB (construction defects/work defects) prescribes longer periods.
(2) The delivered items shall be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects which would have been recognisable in an immediate, careful inspection, they shall be deemed to have been approved by the customer if the seller does not receive a written notice of defect within 7 working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if the notice of defect is not received by the seller within 7 working days of the time at which the defect became apparent; if the defect was already recognisable to the customer at an earlier time under normal use, this earlier time shall, however, be decisive for the commencement of the period for notification of defects. At the Seller’s request, a delivery item which is the subject of a complaint shall be returned to the Seller carriage paid. In the event of a justified notice of defects, the Seller shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase if the delivery item is located at a location other than the location of the intended use.
(3) In the case of material defects of the delivered items, the seller is initially obliged and entitled to remedy the defect or make a replacement delivery at his discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement, the customer may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is based on the fault of the seller, the customer may claim damages under the conditions specified in Section IX below.
(5) In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or actual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against the Seller for such defects under the other conditions and in accordance with these General Terms and Conditions shall only exist if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example due to insolvency, is futile. During the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the customer against the seller is suspended.
(6) The warranty does not apply if the customer changes the delivery item or has it changed by a third party without the consent of the seller and the removal of the defect is thereby made impossible or unreasonably difficult. This shall not apply if the defect can also be remedied by delivery of a defect-free item. In any case, the customer shall bear the additional costs of remedying the defect incurred as a result of the change.
(7) Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty for material defects.
IX. Liability for damages due to culpa in contrahendo
(1) The Seller’s liability for damages, irrespective of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this Section IX to the extent that this depends on fault.
(2) The Seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless it is a matter of a breach of essential contractual obligations. Essential to the contract are the obligation to deliver the delivery item on time, its freedom from defects of title and material defects which impair its functionality or usability more than only insignificantly, as well as obligations to provide advice, protection and care which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the customer’s personnel or to protect the customer’s property from considerable damage.
(3) Insofar as the Seller is liable for damages on the merits pursuant to this Section IX (2), this liability shall be limited to damages which the Seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which he should have foreseen if he had exercised due care. Indirect damages and consequential damages resulting from defects of the delivery item shall only be eligible for compensation if such damages are typically to be expected when the delivery item is used in accordance with its intended purpose.
(4) In the event of liability for simple negligence, the Seller’s liability for damages to property and resulting further financial losses shall be limited to an amount of Euro 5 million per claim (corresponding to the current sum insured under its product liability insurance or liability insurance), even if it is a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the Seller.
(6) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of the liability of this section IX do not apply to the liability of the seller for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
X. Industrial property rights and copyrights
(1) The customer is granted the non-exclusive right to use the software supplied with the goods in connection with the use of the goods.
(2) The customer is not entitled to make copies of the software, except for the purpose of use in accordance with Clause 10 (1) or for security purposes.
(3) The customer may only transfer the rights granted to him to the software to a third party if the ownership of the relevant product (in particular hardware product) is transferred to this third party at the same time and the customer does not retain any copies of the software.
(4) Under no circumstances shall the Seller be obliged to disclose the source code of the software.
XI. Privacy Policy
(1) Note: The customer acknowledges that the seller stores data from the contractual relationship in accordance with § 28 BDSG for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) if necessary for the fulfilment of the contract. In addition, reference is made to the “Data protection” link, which the customer can reach directly from here.
XII. final provisions
(1) The contract existing between Fluvius GmbH and the customer is subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and German international private law, subject to mandatory international private law provisions.
(2) If the customer is a merchant within the meaning of § 1 paragraph 1 of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, or if the customer does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the seller and the customer shall, at the choice of the seller, be the registered office of the seller or the customer. In such cases, however, the exclusive place of jurisdiction for legal action against the Seller shall be the Seller’s registered office. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(3) Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed to have been agreed for filling these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the loophole.