Terms & Conditions
§ 1 General – Area of Application
(1) Our Terms & Conditions shall apply to all contracts entered into between our customers and ourselves relating to the supply of items. They shall also apply to all future business relations, even if not expressly agreed again. Our Terms & Conditions shall apply exclusively; conicting terms and conditions or customer’s terms and conditions which deviate from ours shall only be accepted if expressly approved by us in writing. Our Terms & Conditions shall also apply in instances where we unreservedly fulll an order despite being aware of custome`s conicting or deviating conditions.
§ 2 Oer and Conclusion of Contract
(1) A customer order which may be considered an oer to conclude a purchase agreement may be accepted by us within two weeks, by forwarding eilther an order confirmation or the items ordered within our normal delivery period of 2 – 11 weeks.
(2) Our oers are subject to change without notice and non-binding unless we have expressly declared them as binding.
(3) We reserve our property rights, copyrights and other related rights in all images, calculations, designs and other documents. The contract partnershall be entitled to pass these documents on to third parlies only with our written authorization, irrespective of whether we have marked them as condential.
(4) The customer agrees not to sell directly or indirectly to other specialist retailers the items delivered or to otherwise enter into competition with us by passing on these items. The items are intended exclusively for end customers. ln instances of a violation of this clause, the customer shall be obligated to pay damages to the amount of the loss of prot suered by us, as weil as providing comprehensive information about the whereabouts of the items. ltems ordered or delivered may not be returned.
(5) Commitments made by our sales sta which do not comply with our Term & Conditions require written confirmation, otherwise they shall be considered invalid.
§ 3 Prices – Terms of Payment
(1) Unless stated otherwise in our order conrmation, our prices apply ex works, packing and transport excluded. These costs shall be charged separately.
(2) Unless stated otherwise in our order confirmation, the list prices applicable on the day of our order confirmation shall apply. There will be a surcharge for spectacle frames and spectacle lenses outside standard sizes.
(3) Our prices do not include VAT; VAT will be charged on the day the invoice is issued and shown separately on the invoice.
(4) The customer shall only be entitled to set o amounts if its counterclaims have been established as nal and absolute, are undisputed or have been accepted by us. ln addition, it shall be entitled to exercise its right of retention provided that its counterclaim is based on the same contractual relationship.
(5) We reserve the right to claim full or partial prepayment of the purchase price. This shall apply specically in the event that the customer is in arrears with payments relating to other orders. We also reserve the right to withdraw from orders which have not yet been fullled in the event that the customer is in arrears with payments relating to other orders.
§ 4 Delivery Period
(1) The commencement of the delivery period stated by us is based on the clarication of all technical questions.
(2) The risk of accidental theft or damage of the ordered items shall be transferred to the customer at the moment it is in arrears or default of acceptance.
(3) We shall be liable pursuant to statutory provisions provided that the purchase agreement is settled on a xed date. We shall also be liable pursuant to statutory conditions provided that the customer is entitled to assert, due to a delay in delivery for which we are accountable, that it has no further interest in the continued fulllment of the agreement.
(4) We shall additionally be liable pursuant to statutory provisions in instances where a delay in delivery is due to breach of contract due to intent or gross negligence for which we are accountable; a fault on the part of
one of our representatives or vicarious agents shall be attributed to us. ln instances where a delay in delivery is not due to an intended breach of contract for which we are accountable, our liability shall be limited to reasonably foreseeable, typical damages.ln addition, weshall be liable pursuant to the statutory provisions in instances where a delay in delivery for which we are accountable is due to the culpable breach of a material contractual obligation; in such instances, our liability shall be limited to reasonably foreseeable, typical damages.
(5) Weshall be entitled to supply partial deliveries and partial performance at any time, provided that these can be reasonably imposed on the customer.
(6) Should the customer be in default of acceptance, weshall be entitled to claim compensation for any damage and additional expenditure. The same shall apply if the customer culpably violates its obligation to cooperate. On commencement of the default of acceptance or delay of payment, the risk of accidental theft or damage of the ordered items shall be transferred to the customer. We reserve the right to assert further claims.
§ 5 Transfer of Risks – Dispatch I Packaging
(1) The items shall be loaded and dispatched on an uninsured basis at the customer’s risk. Weshall endeavor to Iake into account the customer’s wishes and interests in terms of mode and route of dispatch; any additional costs caused- also in instances of freight-free deliveries- shall be charged to the customer.
(2) Unless stated otherwise in the order conrmation, delivery “ex works” shall be deemed as agreed.
(3) Returned Iransport packaging or any other packaging, except pallets, shall not be accepted by us pursuant to the provisions of the regulation on packaging. The customer shall bear all expenses incurred. ln addition, the customer shall be obligated to dispose of any packaging at its own expense.
(4) Weshalltake out insurance for the delivery at the custome`s written request. The customer shall bear any expenses incurred.
§ 6 Liability for Defects
(1) The customer shall be entitled to assert warranty claims only if it has properly fullled its obligation to inspect the goods and notify us of any complaints in accordance with § 377 HGB (Commercial Code).
(2) ln instances of justied claims, weshall be obligated to supplementary performance, under exclusion of the customer’s right to withdraw from the contract, or reduce the purchase price (reduction) unless we are
entitled to refuse supplementary performance based on statutory provisions. The customer shall be obligated to grant us a reasonable period for supplementary performance. Supplementary performance may – at
the custome`s discretion – consist of cure by either rectication or replacement. ln instances of rectication of a defect, we shall bear any expenses incurred, provided that these expenses arenot increased due to the fact that the object of the contract is located outside the place of fulllment. Should the rectication fail, the customer may- at its discretion – claim a reduction of the purchase price or withdraw from the contract. Rectication shall be deemed to have failed after the second unsuccessful attempt unless, due to the object of the contract, additional attempts at rectication shall be considered reasonable and acceptable to the customer. The customer may claim damages under the subsequent conditions only if rectication has been unsuccessful. The customer’s right to claimfurther damages under the subsequent conditions shall remain
(3) We shall be aliable under statutory regulations in instances where the customer claims damages based on intent and gross negligence, including intent and gross negligence by our representatives and vicarious agents. Unless we arenot accused of intentional breach of contract, liability for damages shall remain limited to foreseeable, typical damage. For such foreseeable, typical damage, liability shall also be unlimited in so far as the customer is entitled to claim for da mag es instead of performance.
(4) We shall be liable under statutory regulations in instances of culpable breaches of a material contractual duty on our part; in such instances, liability shall remain limited to foreseeable, typical damages.
(5) Liability due to culpable injury to life, body or health shall remain unaected; this shall also apply to mandatory liability under the German Product Liability act.
(6) Liability shall be excluded unless stipulated otherwise in the above.
(7) The period of Iimitation for warranty claims shall be twelve months from transfer of perils.
(8) Liability in instances of a delivery recourse in accordance with §§ 478, 479 BGB (German Civil Code) shall apply, provided that the customer has notied us without delay in writing ofthe defects. lt shall be obligated to make available to us photocopies of all written communication. For the purpose of this provision, the term “without delay” shall imply a period of five working days. The customer shall receive a credit note in instances of claims for compensation which we are obligated to fulll. Cash payments shall be excluded in instances of delivery recourse.
§ 7 Joint and Several Liability
(1) Liability for damages exceeding the provisions in accordance with § 6 shall be excluded – without consideration of the legal nature of the asserted claim. This shall apply specically to claims arising from culpa in contrahendo, other breaches of duty and tortuous claims for compensation for material damage in accordance with § 823 BGB.
(2) ln instances where our liability has been excluded or limited, this shall also apply to the personalliability of our employees, members of sta, personnel, representatives, and vicarious agents.
§ 8 Reservation of Title
(1) The object of sale shall remain the seller`s property until full payment has been made. ln instances of breach of contract on the part of the purchaser, particularly in instances of default of payment, we shall be entitled to recover the purchased item. Recovery of the purchased item shall not constitute a with drawal from the agreement unless expressly declared in writing. A seizure of the purchased item by us shall in all instances constitute a withdrawal from the agreement. After recovery ofthe purchased item, weshall be entitled to sell the item and oset the proceeds ofthe sale – less reasonable costs incurred – against the accounts payable by the purchaser.
(2) The purchaser shall be obligated to treat the purchased item with care; it shall be obligated in particular to insure at its own expense the purchased item at replacement value against re and water damage and theft. The purchaser shall be ob Iigated to carry out at its own expense any maintenance and inspection works required.
(3) The purchaser shall be obligated to inform us without delay of any seizures or other intervention by third parlies so that we may le suit in accordance with § 771 ZPO (Code of Civil Procedure). ln instances where such third party is not in a position to refund to us thejudicial and extrajudicial costs of a suit in accordance with § 771 ZPO, the purchaser shall be liable for any costs incurred by us.
(4) The purchaser shall be entitled to sell the purchased item as part of a regular business transaction; it shall, however, assign to us as of today all claims to the amount of the total costs invoiced by us (including VAD)
accruing from the resale to its customers or third parties, regardless of whether the purchased item has been resold with or without further processing. The purchaser shall remain entitled to collect this claim even after the assignment thereof. Our entitlement to collect directly the amount owing shall remain unaected. However, we undertake to refrain from collecting the claim under the provision that the purchaser shall fulll its obligation to pay from the revenues received, does not fall in arrears and does not le for bankruptcy, or initiate composition or insolvency proceedings, nor cessation of payments has occurred. ln such instance, we shall be entitled to demand that purchaser make its assigned claims and debtors known to us, provide all required information and documentation, andinform the debtor (third party) of such assignment of claims.
(5) Processing or modication of the purchased item by the purchaser shall always be eected on our behalf. lfthe purchased item is processed Iogether with other items which do not belong to us, weshall acquire joint ownership in the new item to the proportion ofthe value of the purchased item (nal invoice amount, including VAD in relation to the other processed items at the time of processing. ln addition to the above, the same shall apply to the item produced through the processing as to the item supplied under reservation of title.
(6) lf the purchased item is mixed with other items which do not belong to us, weshall acquirejoint ownership in the new item to the proportion of the value of the purchased item (invoice amount, including VAD in relation to the proportion of the value ofthe other mixed items at the time oftheir being mixed. lf such mixing is performed in such a way that the purchase`s item must be regarded as the principal item, it shall be agreed that the purchaser shall transfer to us proportionale joint ownership. The purchaser shall keep on our behalf the solely or jointly owned item thus produced.
(7) At the purchase`s request, we undertake torelease securities to which we are entitled to the extent that the realizable value of our securities shall exceed the claimstobe secured by more than 10 %; the selection of securities to be released shall be at our discretion.
§ 9 Court of Jurisdiction – Place of Performance
(1) Provided that the purchaser is a merchant, our place of business shall be considered court of jurisdiction; we shall, however, also be entitled to bring action against the purchaser at its own place of residence.
(2) This agreementshall be governed by the laws of the Federal Republic of Germany; the United Nations Convention on Contracis for the International Sale of Goods shall not apply.
(3) Unless stated otherwise in the order confirmation, our place of business shall be considered place of performance.
Publisher: Emmerich Fashion GmbH
Registered office: Gahlenfeldstraße 27 A, 58313 Herdecke, Germany
Telephone: +49 2330 6062-100
Editor-in-Chief: Holger Emmerich
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