General Terms and Conditions for Business Customers
General Terms and Conditions of Nitzbon AG for Business Customers
§ 1 Scope of Application
(1) All offers, sales, and deliveries of goods by Nitzbon AG (hereinafter referred to as "we") are made exclusively on the basis of these General Terms and Conditions. These form part of all purchase contracts that we conclude with our customers (hereinafter referred to as "Customer") for the goods offered by us.
(2) We do not recognize any conflicting terms and conditions of the Customer or terms and conditions that deviate from our General Terms and Conditions, unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we carry out delivery to the Customer without reservation while being aware of conflicting terms and conditions of the Customer or terms and conditions that deviate from our General Terms and Conditions.
(3) These General Terms and Conditions apply only to business customers. For the purposes of these General Terms and Conditions, "business customers" are: entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law, and special funds under public law. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity (§ 14 (1) BGB).
§ 2 Offer – Conclusion of Contract – Offer Documents
(1) Our offers in brochures, catalogues, on the internet, in advertisements, offer letters, etc. — including the prices stated therein — are non-binding and subject to change, i.e. they are to be understood only as an invitation to the Customer to submit a purchase offer to us.
(2) By ordering goods, the Customer submits a binding offer to purchase the goods. The purchase contract is only concluded once we send the Customer an order confirmation. The order confirmation constitutes acceptance of the Customer's offer. We are entitled to accept the Customer's offer within 7 days of receipt of the order by sending an order confirmation. If the Customer does not receive an order confirmation from us within this period, their offer shall be deemed rejected and no contract shall come into effect.
(3) The language of the contract is German.
(4) If the Customer places an order electronically, the text of the contract will not be stored by us in a manner accessible to the Customer after conclusion of the contract, but will be sent to the Customer by email upon request, together with these Terms and Conditions.
(5) We reserve ownership rights and copyrights to illustrations, drawings, calculations, and other documents. This also applies to written documents designated as "confidential." The Customer requires our express written consent before passing these on to third parties.
§ 3 Prices – Minimum Order Value
(1) Our prices are quoted in euros.
(2) Statutory value-added tax is not included in our prices; it will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.
(3) Our prices are "ex works." They do not include the costs of shipping or of assembly of the purchased item (§ 5 (2)) at the Customer's location. These will be invoiced separately in accordance with § 7.
(4) The minimum order value is €100.00 net. For orders below this amount, we reserve the right to charge a small-quantity surcharge of €10.00 net.
§ 4 Payment Terms
(1) We reserve the right to deliver only against advance payment (prepayment).
(2) Our invoices are due for payment within fourteen days of the invoice date without deduction. The statutory rules regarding the consequences of default in payment apply.
(3) Deduction of a cash discount requires a separate written agreement.
(4) We do not accept payment by cheque or bill of exchange.
(5) The Customer is only entitled to rights of set-off if their counterclaims have been legally established, are undisputed, or have been acknowledged by us. Furthermore, the Customer is entitled to exercise a right of retention only to the extent that their counterclaim arises from the same contractual relationship.
§ 5 Delivery – Delivery Time – Assembly
(1) Our deliveries are made "ex works."
(2) Assembly of the purchased item by us at the Customer's location shall only take place following a separate agreement.
(3) Deadlines and dates for deliveries and services indicated by us are always approximate only, unless a fixed deadline or fixed date has been expressly agreed. If shipment has been agreed, delivery deadlines and delivery dates refer to the time of handover to the carrier, freight forwarder, or other third party commissioned with the transport.
(4) We are only obligated to deliver the goods to the transport company in a timely and proper manner and are not responsible for delays caused by the transport company. However, if we have also undertaken assembly work at the Customer's location (§ 5 (2)), we are, by way of exception, obligated to complete this work in a timely manner and hand it over to the Customer on the contractually agreed date.
(5) Compliance with our delivery obligation presupposes the timely and proper fulfillment of the Customer's obligations. The defense of an unfulfilled contract remains reserved.
(6) If the Customer is in default of acceptance or culpably breaches other obligations to cooperate, we are entitled to demand compensation for any resulting damage, including any additional expenses. Further claims or rights remain reserved.
(7) If the conditions of para. (6) are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the Customer at the point in time at which the Customer falls into default of acceptance or default as a debtor.
(8) We are liable in accordance with statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of § 286 (2) no. 4 BGB or § 376 of the German Commercial Code (HGB). We are also liable in accordance with statutory provisions if, as a result of a delivery delay for which we are responsible, the Customer is entitled to claim that their interest in the continued performance of the contract has ceased to exist.
(9) We are further liable in accordance with statutory provisions if the delivery delay is based on an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents is attributable to us. If the delivery delay is based on a grossly negligent breach of contract for which we are responsible, our liability for damages is limited to the foreseeable damage typically occurring.
(10) We are also liable in accordance with statutory provisions to the extent that the delivery delay for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, liability for damages is limited to the foreseeable damage typically occurring.
(11) Further statutory claims and rights of the Customer remain reserved.
§ 6 Place of Performance – Shipment – Transfer of Risk
(1) The place of performance for all obligations arising from the contractual relationship is our registered place of business, unless otherwise specified. If we have also undertaken the assembly at the Customer's location (§ 5 (2)), the place of performance is the location where the assembly is to take place.
(2) The mode of shipment and the packaging are subject to our reasonable discretion.
(3) If we are only obligated to arrange for shipment, risk passes to the Customer upon delivery of the goods to the transport company. If we have undertaken assembly work at the Customer's location (§ 5 (2)), risk instead passes upon completion of this work and handover to the Customer.
§ 7 Shipping Costs – Assembly Costs
(1) Shipping costs are invoiced to the Customer based on the expenses incurred by us for the transport company, plus statutory value-added tax in each case.
(2) For export deliveries, the Customer additionally bears customs duties as well as fees and other public charges.
(3) If we have also undertaken assembly work at the Customer's location (§ 5 (2)), we will charge a flat fee for the assembly and a flat fee for travel to and from the site, plus statutory value-added tax in each case.
(4) The Customer bears the costs of returning transport packaging.
§ 8 Liability for Defects – Inspection – Notice of Defects
(1) The delivered items (goods) must be carefully inspected immediately after delivery to the Customer or to a third party designated by the Customer, or, if we have also undertaken assembly work at the Customer's location (§ 5 (2)), immediately after completion and handover of this work. With regard to obvious defects or other defects that would have been recognizable upon immediate, careful inspection, the goods shall be deemed approved by the Customer unless we receive a written notice of defects within 7 working days of delivery or, if we have also undertaken assembly work at the Customer's location (§ 5 (2)), within 7 working days of its completion and handover. With regard to other defects, the delivered items shall be deemed approved by the Customer if we do not receive notice of the defect within 7 working days of the time at which the defect became apparent; however, if the defect was already recognizable to the Customer at an earlier point in time under normal use, that earlier point in time shall determine the start of the notice period.
(2) If the purchased item is defective, the Customer is entitled, at their discretion, to subsequent performance in the form of remedying the defect or delivering a new, defect-free item. In the case of remedying the defect or replacement delivery, we are obligated to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs.
(3) If subsequent performance fails, the Customer is entitled, at their discretion, to demand rescission of the contract or a reduction in price.
(4) We are liable in accordance with statutory provisions if the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of an intentional breach of contract, liability for damages is limited to the foreseeable damage typically occurring.
(5) We are liable in accordance with statutory provisions if we culpably breach a material contractual obligation; in this case, however, liability for damages is limited to the foreseeable damage typically occurring.
(6) Insofar as the Customer is otherwise entitled to compensation for damages instead of performance due to a negligent breach of duty, our liability is limited to compensation for the foreseeable damage typically occurring.
(7) Liability for culpable injury to life, body, or health remains unaffected; this also applies to mandatory liability under the German Product Liability Act.
(8) Unless otherwise provided above, liability is excluded.
(9) The limitation period for claims based on defects is 12 months, calculated from delivery of the item to the Customer, or, if we have also undertaken assembly work at the Customer's location (§ 5 (2)), calculated from its completion and handover of the item to the Customer.
(10) The limitation period in the case of a supplier's right of recourse pursuant to §§ 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.
§ 9 Overall Liability
(1) Any further liability for damages beyond that provided for in § 8 is excluded — regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from fault at the conclusion of the contract, other breaches of duty, or tortious claims for compensation of property damage pursuant to § 823 BGB.
(2) The limitation under para. (1) also applies insofar as the Customer, instead of a claim for compensation for damages in lieu of performance, demands compensation for futile expenditure.
(3) Insofar as our liability for damages is excluded or limited, this also applies with regard to the personal liability for damages of our employees, staff, representatives, and vicarious agents.
§ 10 Return of Goods in the Event of Defects
(1) The return of goods within the scope of existing warranty claims for defects pursuant to § 8 shall be at our expense.
(2) The defective goods will be collected from the Customer by us. The Customer must arrange a collection appointment with us for this purpose.
(3) If the Customer returns the goods to us contrary to our willingness to collect them pursuant to para. (2), we will only cover shipping costs up to the amount of the transport costs that would have been incurred by us for our own collection.
§ 11 Return of Goods in Other Cases
(1) Delivered items will only be taken back — unless this is a return within the scope of the warranty pursuant to § 10 (1) — if we expressly consent to it. The purchase date, invoice number, and reason for the return must be stated on the return request.
(2) Returns pursuant to para. (1) must be made free of charge to us. The return of delivered items that have been altered or damaged by the customer, or that are no longer in their original packaging, is excluded.
(3) If the return of goods is accepted by us and the returned goods are provided to us free of defects, the Customer will receive a credit note, less a processing fee of up to 25% of the invoice amount.
§ 12 Retention of Title
(1) We retain title to the goods delivered by us until the purchase price for the relevant goods has been paid in full (goods subject to retention of title).
(2) If we withdraw from the contract due to the Customer's conduct in breach of contract — in particular default in payment — (case of realization of the security), we are entitled to demand the return of the goods subject to retention of title.
(3) In the event of seizure or other interference by third parties with the goods subject to retention of title, the Customer must notify us immediately in writing so that we can bring an action pursuant to § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Customer shall be liable for any resulting shortfall.
(4) The Customer is entitled to resell the goods subject to retention of title in the ordinary course of business; however, the Customer hereby already assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim arising from the resale against their customers or third parties. The Customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the Customer meets their payment obligations from the proceeds received, does not fall into default of payment, and in particular no application has been filed for the opening of composition or insolvency proceedings, and no suspension of payments exists. However, if this is the case, we may demand that the Customer disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents, and notify the debtors (third parties) of the assignment.
§ 13 Applicable Law – Place of Jurisdiction – Partial Invalidity
(1) If the Customer is a merchant, a legal entity under public law, or a special fund under public law, our registered place of business shall be the place of jurisdiction for all disputes arising from the contractual relationship; however, we are also entitled to sue the Customer at the court of their place of residence.
(2) The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(3) Should any provision in these Terms and Conditions be or become invalid, the validity of all other provisions and agreements between us and the Customer shall remain unaffected.
Hamburg, 05.07.2019
Nitzbon AG
Osterrade 14
D-21031 Hamburg
