CONDITIONS OF SALE AND DELIVERY
EDELRID GmbH & Co. KG, 88316 Isny im Allgäu (valid from 01.12.2010)
1. The deliveries, services and offers of the seller are effected solely on the basis of these terms and conditions. These terms and conditions also apply to all other business relationships with the purchaser, also if they are not expressly agreed again. These terms and conditions are deemed to have been expected at the latest upon receipt of the goods. Conditions other than these, in particular purchasing conditions of the purchaser, do not apply, even if the seller has not expressly objected to such conditions or has arranged delivery to the purchaser without reservation and in full knowledge of such deviating conditions.
2. Deviations from these terms and conditions shall only become effective if the seller has confirmed such in writing. There are no oral agreements. All agreements which representatives make for the seller require the written confirmation of the seller.
3. In addition, the Incoterms of the International Chamber of Commerce in Paris are valid in their applicable version.
4. These terms and conditions, as well as the "Guidelines on the Sale of EDELRID Products in eCommerce", apply for eCommerce.
5. EDELRID reserves the right to amend the present terms and conditions and the Guidelines on the Sale of EDELRID Products in eCommerce at any time and without indicating reasons. Changes to the terms and conditions and the Guidelines on the Sale of EDELRID Products in eCommerce are made known to the dealer in writing or in text format (e.g. e-mail or fax). If the dealer does not object to the application of the amended terms and conditions within four weeks in writing or in text format, they are deemed to have been accepted; EDELRID shall emphasise the importance of this time period to the dealer upon disclosure. The customer must submit any objection to EDELRID within the time period.
II. Offer and conclusion of contract
1. The offers of the seller are non-binding and subject to confirmation, unless they are expressly marked as binding offers in writing. Declarations of acceptance and all orders require the seller's confirmation in writing or by telex to become legally valid. The same shall apply to supplements, amendments or collateral agreements.
2. In the case of offers marked as binding a contract is entered into if the offer of the seller is accepted in writing by the purchaser within a period of two (2) weeks of the date of offer or the purchaser accepts the goods delivered by the seller. The seller is no longer bound to the offer upon expiry of this period.
3. If the purchaser makes certain requirements concerning the service of the seller, then he must inform the seller thereof in writing before his order confirmation. The seller is then entitled to accept or refuse the order in writing within a period of two (2) weeks from receipt of the written request. In each case the purchaser remains bound to his offer within this period.
4. The seller reserves the right to make changes to the goods without special approval from the purchaser insofar as these changes are owing to technical development or insofar as they constitute technical improvements. Apart from that slight deviations in colour, size and form, etc. are permitted insofar as they are not unreasonable for the customer.
1. The prices mentioned in the offers of the seller are only binding on the seller within the period of validity of the offer.
2. In general, prices apply carriage forward ex works or warehouse of the seller. They are basically understood to be excluding the relevant applicable value added tax and do not include transport, postage or packaging costs, as well as insurance, customs or other additional expenses.
3. Unless otherwise agreed, the seller is entitled to adjust the agreed prices/payments to increases in wages and costs of materials and raw materials. The purchaser's approval or consent is not required in this regard. In the case of agreed prices such an adjustment is only possible if there is a period of more than six (6) weeks between the conclusion of the contract and the delivery and the cost increases have occurred after conclusion of a contract.
4. The seller reserves the right to charge a minimum order surcharge of EUR 15.-- net for orders up to EUR 70.--.
IV. Deliveries and delivery period
1. The dates and times specified by the seller are non-binding unless otherwise expressly agreed in writing.
2. Partial deliveries are possible at any time. Delivery dates and times are deemed to be observed with the timely dispatch of the delivery items or notification of the readiness for dispatch.
3. Delivery dates start upon conclusion of the contract, however not before receipt and clarification of all necessary documentation, before performance by the purchaser required for the delivery, before agreement on the place of execution, as well as before granting of all official permits.
4. In the event of subsequent contract supplements and/or changes the delivery dates or times start anew.
5. If the service of the seller is dependent on a correct or timely delivery from suppliers, then he is entitled to withdraw from the contract or extend agreed delivery times accordingly, insofar as the seller himself did not receive a proper and/or timely delivery and a corresponding covering transaction was not possible or economically feasible for the seller.
6. The seller cannot be held liable for delivery and performance delays as a result of force majeure and due to events which complicate the delivery or make it impossible for the seller - this also includes subsequent difficulties in procuring materials, interruptions to operations, strike, lockout, shortage of staff, lack of means of transport, official orders, etc., also if they occur at the seller's suppliers or their subcontractors -, even in the case of binding and stipulated times and dates. Such delays shall entitle the seller to postpone the date for delivery or rendering of the service for the length of the hindrance plus an appropriate processing time or to withdraw from the contract in whole or in part as a result of the part not yet fulfilled.
7. If the hindrance lasts longer than three (3) months according to the above-mentioned clauses 5 and 6, the purchaser is entitled after an appropriate extension period to withdraw from the contract with regard to the unfulfilled part.
V. Shipping/Transfer of risk
1. The risk of accidental loss and deterioration is transferred to the purchaser as soon as the goods have been transferred to the person responsible for the transport, at the latest however when the goods leave the grounds of the warehouse.
2. If it has been agreed that the purchaser will collect the goods, then in contrast to the above-mentioned clause 1 the risk of accidental loss and deterioration is transferred to the purchaser upon the provision of the goods for collection and their notification thereof to the purchaser.
3. The aforementioned clause also applies in the case of partial deliveries.
1. Unless otherwise agreed the invoices from the seller are payable at the latest 30 days from invoicing date, without any discount. For payments made within 10 days the seller grants a discount of 3%. Repair invoices must be paid immediately, without discount.
2. A payment is only deemed to have been made when the seller has access to the amount. Payment transfers, cheques and bills of exchange shall only be accepted as conditional payment and any collection charges and discount fees incurred shall be borne by the purchaser. Any discounts granted are conditional upon timely payment and/or complete acceptance of the goods, insofar as deductions are in connection with quantities. In the case of returns which the seller has expressly approved, but is not obliged to do so, the bulk discounts already granted for the entire shipment from which the returns originate are cancelled with a corresponding back payment to be made by the purchaser.
3. If the payment term specified in the above-mentioned clause 1 is exceeded the seller is entitled without further reminder to demand from the purchaser default interest at a rate of 8% above the base rate published by the Bundesbank in line with § 247 BGB (German Civil Code) p.a. The right to claim further damages due to delay in performance shall remain unaffected hereby.
4. In the event of non-compliance with the terms and conditions of payment or in the case of circumstances which come to the notice of the seller after conclusion of the contract and which may not only slightly decrease the creditworthiness of the purchaser from the bank's perspective but also in its opinion put the realisation of the seller's debts at risk, the seller expressly reserves the right to call the entire residual debt for payment. This also applies in the case of the acceptance of bills of exchange or cheques. The seller is also entitled to withdraw from contracts already concluded with the purchaser if the purchaser does not make an advance payment or provide other collateral upon request and at the seller's discretion.
5. The purchaser is only entitled to an offset, right of retention or reduction if the corresponding counterclaims of the purchaser have been ascertained without dispute or in law. The purchaser agrees to offsetting his debts and liabilities vis-a-vis the seller.
1. The purchaser must inspect the delivered goods immediately and notify any visible defects and defects which can be identified following a proper examination within 10 days of receipt of the goods. The purchaser must notify non-obvious defects and defects which cannot be identified following a proper examination within 10 days of their discovery. The timely sending of the written notice suffices for compliance with the deadline. Failure to report the defects means that the warranty on the damaged goods is not considered.
2. Without prejudice to the requirement according to the above-mentioned clause 1, to notify defects in good time, a warranty is provided for defects at the latest one (1) year after delivery to the purchaser. This does not apply in the case of deceitfulness or bad faith on the part of the seller.
3. In the case of timely notification by the purchaser that the goods are faulty, the seller can at his discretion repair or replace the goods.
4. If in conjunction with the replacement delivery the goods about which a complaint has been made are returned the goods concerned shall be returned to the seller free of charge, clean and with the defect clearly marked, providing information required for processing the complaint such as delivery number, customer number, enclosure of the warranty certificate and the invoice, etc. If the complaint turns out to be justified, a free replacement delivery is made to the purchaser and a refund of the arising freight costs made upon production of evidence thereof.
5. If the seller refuses a repair or replacement delivery without justification, or such action fails or is not reasonable for the purchaser, for example because the seller unduly delays same, then the purchaser can ask for the contract to be rescinded or an appropriate reduction of the payment. In the event of a minor infringement of the contract, in particular in the case of minor defects, the purchaser is not entitled to rescind the contract, however.
6. Warranty claims of the contract partners are excluded, if improper handling and/or storage led to the arising defects or was at least partly responsible for the defects.
7. The above-mentioned terms and conditions shall not apply to the extent that according to applicable German law, for example as a result of § 478 Paragraph 4 BGB (German Civil Code), a deviating regulation is stipulated.
VIII. Retention of title
1. The seller retains ownership of the delivered items until full payment of the purchase price has been made, as well as all receivables from the existing business relationship with the purchaser have been met.
2. The retained goods cannot be pledged, assigned as collateral or encumbered with third-party rights. The purchaser is only entitled to resell items and resell in conjunction with other movables as part of his normal and legal business. In the event that the property of the seller should cease to exist as a result of the combination with other movables, then the purchaser undertakes to assume co-ownership with the seller taking into consideration the ratio of the respective values of the combined items to each other.
3. The purchaser shall ensure that the title retention of the seller remains in place where possible and assigns the purchase price claim of the goods vis-a-vis its customers for the full amount or the amount allocated to the co-ownership proportion to the seller. The seller hereby accepts the assignment. After the assignment the purchaser is authorised to collect the receivable. The seller reserves the right to collect the receivable himself, as soon as the purchaser does not meet his payment obligations appropriately and falls into arrears. In this case the purchaser must name the customers upon request by the seller and hand over all documentation necessary for the implementation of the assigned receivables to the seller.
4. The purchaser is obligated to insure the retention goods against typical risks such as fire, water and theft at his own cost. If the purchaser does not meet the insurance obligation despite a reminder by the seller, the seller can take out an insurance policy at the purchaser's expense, advance the premium and claim it as part of its payment. The purchaser assigns all claims against the insurer or wrongdoer to the seller for the insurance case. The seller hereby accepts the assignment.
5. The redemption of the goods subject to a title of retention by the seller does not require a rescission from the corresponding contract. If the purchaser behaves contrary to the contract, in particular in the case of payment arrears or if legal insolvency or bankruptcy proceedings are initiated against the assets of the purchaser, the seller is entitled to redeem the goods and the purchaser is obligated to hand over the goods with the exclusion of any right of retention. All costs arising from the redemption shall be borne by the purchaser.
6. If the realisable value of the retention goods exceeds the total claim by more than 20%, then the seller is obligated to transfer back the respective amount to the purchaser.
IX. Limitation of liability
1. In the case of slightly negligent breaches of duty the liability of the seller - and also his agents and vicarious agents and legal representatives - is limited to foreseeable and immediate average damages typical of a contract according to the type of goods. The seller is also not liable in the case of simple negligence of minor contractual obligations.
2. The aforementioned liability restrictions do not concern claims of the purchaser for product liability or other mandatory legal provisions. In addition, the liability restrictions do not apply in the case of injuries to the life, body and health of the purchaser attributable to the seller.
3. Claims for damages by the purchaser due to defects become time-barred after one (1) year from delivery of the goods. This does not apply if the seller is accused of gross negligence, as well as in the case of injuries to the life, body or health of the purchaser attributable to the seller.
4. Unless otherwise agreed in writing the seller is not liable for materials provided by the purchaser, order components, shipping information, processing regulations and the like. The seller is not obligated to check this for compliance with the legal standards in the sense of the product liability act and/or the BGB (German Civil Code). In these cases the purchaser is liable without limitation and releases the seller in full from all claims from third parties.
X. Industrial property rights
1. The purchaser acknowledges that all brands with which the goods are marked are the sole property of the seller. He has no claim or right to be able to use these brands for an indefinite period.
2. For the purpose of proper marking of the seller's goods a non-exclusive right to use the brands is granted to the purchaser. The use of the brands in this scope does not provide grounds for the purchaser to continue using the brands after the contractual relationship with the seller is terminated. After termination of the supply relationship with the seller and sale of all existing goods and goods already supplied at the purchaser, the purchaser shall cease to use the brands of the seller with immediate effect.
3. The purchaser shall do nothing which would question the trademark rights of the seller and in particular shall not challenge the legal validity of the property rights or support third parties in doing so.
XI. Data protection
In the framework and within the limits of existing data protection law the seller is entitled to process and store personal data of the purchaser.
XII. Applicable law, place of jurisdiction, severability clause
1. The law of the Federal Republic of Germany to the exclusion of any conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG) applies to these terms and conditions and all the legal relationships between the seller and purchaser.
2. For all disputes arising from the contractual relationship, if the purchaser is a businessman, a legal entity under public law or a special fund under public law, only the court in whose district the seller has its head office has jurisdiction. The seller is entitled however at his discretion to file a suit at the company head office of the purchaser.
3. The exclusive place of fulfilment, insofar as is legally permissible, for all claims from this contract is the head office of the seller.
4. If a provision in these terms and conditions or a provision in the framework of other agreements is or becomes ineffective, the validity of all other provisions or agreements is not affected thereby. In this case the seller together with the purchaser agree to replace the ineffective provision with an effective provision which comes as close as possible to the economic intent of the ineffective provision.
Guidelines on the Sale of EDELRID products in eCommerce
EDELRID GmbH & Co. KG, 88316 Isny im Allgäu (valid from 01.12.2010)
Insofar as the EDELRID brand represents the high quality of its products and a particular competence in the area of sports and occupational safety is accorded to it within the framework of consumer expectations, EDELRID GmbH & Co. KG (hereinafter referred to as "EDELRID") agrees within the framework of existing dealer agreements and new dealer agreements to be concluded the guidelines listed below for the purposes of the (re)sale of EDELRID products, particularly in the area of eCommerce.
EDELRID and the dealer agree that the following guidelines form the basis for the successful collaboration for the period of existence of the dealer agreements and that such guidelines are observed.
1. Also for the area of eCommerce the dealer is obligated to only sell and market the contractual products to end users and/or other dealers authorised by EDELRID.
2. The high quality of the contractual products, as well as the image associated with the EDELRID brand, demand certain quality requirements of the dealer are met in the area of eCommerce to maintain the quality standard:
a) The dealer undertakes to conduct any form of advertising and/or an offer for initiating contracts in eCommerce while always observing the separate standard regulations – in particular the definitive regulations on distance selling - currently regulated in §§ 312 b ff BGB in conjunction with § 1 BGB-InfoV – as well as on eCommerce – primarily set out in § 312 e BGB in conjunction with § 3 BGB-InfoV – must be observed and implemented.
b) Insofar as the advertising and/or sale or marketing of the contractual products is effected via electronic information and communication services – teleservices or media services –, the dealer is also obligated to satisfy the labelling and notification requirements in this regard.
c) To maintain the image of the products labelled by EDELRID, the dealer undertakes to only use the approved logos and writing made available by EDELRID for eCommerce for the advertisement and sale of such products.
Insofar as EDELRID also makes available separate product definitions and displays in text and image format, use of such by the dealer is only permitted upon express consent by EDELRID and/or the respective owner of rights. A legal claim to the transfer of the definitions and displays does not exist.
d) For the presentation of the contractual products in eCommerce the dealer orientates himself to the image and the consumer expectations relating to the EDELRID brand with regard to the design of the advertisement and/or offer. In this connection the dealer also undertakes not to advertise and/or sell third-party products which are capable of having a negative impact on the reputation of EDELRID in connection with the contractual products of EDELRID. The dealer shall only put the contractual products into categories with an appropriate theme and not into categories of other brands.
3. If the advertising and the sale and marketing in the area of eCommerce is effected via online marketplaces – in particular the eBay trading platform – other additional requirements must be satisfied by the dealer in order to guarantee the quality level of EDELRID in this respect.
a) If a rating system for assessment on the respective online marketplace is available to the dealer partners, the dealer must have an evaluation profile of at least 100 points and must have a positive rating of at least 98%.
b) If the dealer only starts participating in the relevant online marketplace and therefore does not yet have a corresponding evaluation profile, EDELRID shall grant the dealer approval, which can be revoked at any time, upon compliance with all other requirements to offer for sale and sell contractual products on the marketplace.
4. In the event of a breach of the present guidelines EDELRID is authorised to terminate the dealer agreement for good cause and without observing a period of notice.
a) Before termination of the dealer agreement EDELRID shall serve notice to the dealer and/or set a reasonable deadline to provide a remedy – unless the dealer seriously and definitively refuses to comply with the present guidelines or special circumstances exist which justify the immediate termination of the legal relations having weighed up the interests of both parties.
b) Any other claims - in particular the right of EDELRID to request information and compensation - shall remain unaffected thereby and are reserved.
5. EDELRID makes the current, non-binding price recommendations available to the dealer for the resale of its brand products.
EDELRID GmbH & Co. KG
Company head office: Isny, District Court Ulm HRA 620421
Partner with unlimited liability: Edelmann+Ridder Verwaltungsgesellschaft mbH, AG Ulm, HRB 620210
Managing Director: Albrecht von Dewitz, Antje von Dewitz